Employment practices exposures when responding to the COVID-19 pandemic

Woman working on laptop at officeDesign firms are businesses. As businesses, they are subject to federal, state, and local laws that mandate employment practices that are fair and compliant with governing statutes and regulations. The requirements often vary by firm size, but all firms should be aware that during the disruptions caused by the COVID-19 outbreak, compliance is becoming more challenging. Most employment practices law firms are anticipating a rise in complaints and litigation.

Employment guidelines are changing, and they vary from state to state and what your local community is doing. As always, personnel decisions need to be made on an unbiased, nondiscriminatory basis.

What if I want to reduce my staffing?

To avoid discrimination claims, employers should follow the same procedures they would with any reductions-in-force by statistically analyzing whom they are deciding to let go and see if it includes anyone in a protected class.

Employers should be looking at skill sets, relative performance, and evaluations in light of the unique situation firms and society now face. Obviously, one question is, “What are the skill sets we’re going to need in the new economy?” It is not simply, “How can we survive this disruption with our normal employment procedures?”

Can I protect some employees who might be at greater risk?

In deciding who will return to an office setting or what services they will provide, employers face the dilemma of discrimination versus accommodation.

Requiring those who can be deemed more susceptible to the coronavirus, such as older employees, pregnant women, or individuals with pre-existing conditions, to return to a situation that presents increased exposure risk violates an employer’s need to be prepared to accommodate risk factors. However, if an employer returns a younger employee but not a senior employee to the same position, based on a concern that the older employee is more vulnerable to COVID-19, this could arguably be considered discrimination.

Within a defined systematic approach, it is perfectly appropriate to reach out to employees in high-risk groups and inquire as to accommodations that may be possible and whether they may prefer to stay home, return later, or avoid certain employment activities.

What if an employee expresses fears of returning to the office?

There are situations in which employees who are asked to return to an office are too nervous to do so—either because they fear exposure to COVID-19 during their commute or they are unsure if the work environment has the safeguards in place to mitigate their exposure risk. In general, employees are only entitled to refuse to work if they believe they are in imminent danger. This is a high bar for an employee to meet, especially if the firm is taking the appropriate recommended steps to make the workplace a safe environment.

Of course, there is not a lot of precedent for this situation. There will be many situations about what level of fear an employee has, what constitutes a disability, and what is a reasonable accommodation.

Doesn’t my employment practices liability insurance (EPLI) cover my risk as an employer?

Although most design firms carry some form of EPLI coverage, those policies usually cover a firm’s traditional discrimination-type claims, including for retaliation and wrongful termination, but EPLI policies do have bodily injury exclusions so coverage is really going to depend on the specific wording of the policy and how the claim is alleged. If the claim from an employee is based on discrimination with no bodily injury allegations, chances are it will trigger the policy. But with this pandemic, how some of the claims will be alleged is unknown.

Doesn’t my workers’ compensation policy cover COVID-19 exposure?

Almost every state makes participation in its workers’ compensation system a mandatory condition of doing business in the state. While workers’ compensation is established by state statute and must therefore be addressed on a state-specific basis,  states almost uniformly establish workers’ compensation as an exclusive remedy for employee injuries. Many states recognize an exception for injuries caused by various degrees of alleged employer misconduct.

Most workers’ compensation statutes recognize a distinction between an occupational injury and an occupational disease. Precise statutory definitions vary, but generally an occupational disease will be determined by whether the employee’s condition arose out of and in the course and scope of employment. The infection needs to have been caused by conditions peculiar to the work, such that the work created a greater risk of contracting the illness and in a different manner than that faced by the public in general. Under this general standard, exposure to an ordinary disease of life—such as exposure to COVID-19—is usually not compensable under workers’ compensation statutes.

Usually under state law, a plaintiff must prove that it is more likely than not that he or she became infected by exposure to COVID-19 at work, not elsewhere. In most instances, the “more likely than not standard” will be critical because it is virtually impossible to prove with certainty where and how an individual was exposed during a global pandemic. Plaintiffs’ lawyers may be forced to offer comparisons between their clients’ work environments and the other aspects of their daily lives.

An employer should document efforts to make the workplace safe. It is important that what an employer did or did not do to protect its employees is unambiguous. If an employer is able to show that it implemented recommendations from CDC and OSHA guidance in their workplaces, the employer will likely have a greater chance of refuting an employee’s position that the workplace, and not another unpredictable incident of life, was the source of infection.

Some states, however, have enacted or are considering amendments to their workers’ compensations laws that would create a presumption that employees who contracted COVID-19 did so at work, thus exposing employers to new claims for workers’ compensation benefits.

Will my exposure to wage and hour litigation increase?

Wage and hour litigation could result since federal legislation now protects workers who cannot return to work because of childcare issues. A possible source of claims is the federal Families First Coronavirus Response Act (FFCRA), which took effect April 1 and is set to expire Dec. 31. It requires employers to give employees paid emergency family and medical leave and emergency paid sick leave. The law covers private employers with fewer than 500 employees.

The act expands the Family and Medical Leave Act (FMLA) temporarily to cover leave and loss of income when an employee needs to care for children resulting from school and childcare closures because of COVID-19. It creates two weeks of paid sick leave for childcare and other leave related to the coronavirus and provides for tax credits related to the paid leave mandated by the act.

For example, an employee may be eligible for leave under the FFCRA to care for a child if the employee determines that he or she has not “been able to care effectively for the children while teleworking” or to allow a spouse to work or telework. Employers may “ask the employee to note any changed circumstances…as part of explaining why the employee is unable to work.” This is arguably required to substantiate the leave because leave under the FFCRA is unavailable if the employee is able to telework. However, the Department of Labor notes that employers should exercise caution in making such inquiries to avoid denying leave inappropriately, which could give rise to a claim of interference with the employee’s rights.

Are compliance efforts enough?

For the last several months, employers have been forced to learn how COVID-19 spreads, how to maintain or resume safe work environments, and how to navigate a complex web of new and existing laws and regulations implicated by the pandemic. However, unless firms are careful, they may also have to contend with a growing wave of COVID-19–related employment litigation.

Therefore, to carry out your ethical and legal duties you will need to react appropriately:

  • Provide notice as required by applicable state laws of any effort to adjust compensation. If you are reducing your workforce, provide appropriate notices and document that the selection criteria is non-discriminatory.
  • Prepare a COVID-19 workplace safety plan and carry it out by communicating the plan to all employees, ensuring compliance with the plan, investigating and addressing any reported concerns, and documenting the investigation process and outcome.
  • Figure out what are reasonable accommodations that meet the situations where employees do have to perform their services in an office setting, in meetings and group discussions, and on a job site.
  • Conduct health screenings, temperature checks, or other testing while ensuring compliance with social distancing requirements, maintaining confidentiality with regard to any records created, and meeting the mandates of applicable privacy laws. Determine restrictions on permissible testing that exist in some jurisdictions.
  • Document steps taken after an employee reports a positive or presumptive COVID-19 diagnosis and comply with all state guidelines and CDC recommendations on quarantine timeframes and return-to-work parameters.

During times of stress and employment uncertainty, employers need both compassion and compliance to treat employees fairly and within the mandates of laws and regulations.

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