Unique COVID Claims and Lawsuits Asserted Against Employers
THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA). The FFCRA provides two types of leave which employers with fewer than 500 employees must address: (a) Emergency Paid Sick Leave of up to 80 hours for any of six reasons related to having COVID-19, being under a quarantine order, or caring for someone in that situation, as well as parental leave; and (b) Expanded FMLA leave to care for a child whose school or child care is unavailable. With the return of “virtual school,” it is anticipated that many employees who are “parent-educators” will request Expanded FMLA from their employers. The statute authorizes claims based on the denial of leave, interference with leave, and retaliation. Under joint employment rules, even temporary employees may have FFCRA rights with the utilizing employer.
WORKPLACE SAFETY. Employees are asserting thousands of safety-related claims and issues based on regulatory standards promulgated by such agencies as OSHA and MSHA, as well as state and local laws and even non-binding guidance from the CDC and other public health agencies. Employers must be prepared to address the unique safety issues created by COVID-19 – both real and perceived – for those employees working remotely in addition to those employees working on-site.
EEOC CHARGES. There is a surge in disability and age-related discrimination claims, including allegations that the employer perceived employees as “disabled” because they were associated with or exposed to someone with COVID-19, as well as claims that employers are illegally prohibiting older employees and those with underlying health conditions from returning to work. As the pharmaceutical industry and public health community work to develop a vaccine, religious accommodation claims are also likely to spike.
NLRA PROTECTIONS. In addition to requiring employers to bargain with unions about significant changes to wages, hours and working conditions caused by COVID-19, employers must bear in mind that the National Labor Relations Act (NLRA) may protect employees at union and non-union sites who band together to protest perceived unsafe working conditions, refuse to work or decline to perform certain tasks for safety reasons, or engage in other forms of concerted, protected activity relating directly or indirectly to the pandemic.
FAIR LABOR STANDARDS ACT (FLSA). Employees who are working remotely because of the pandemic are asserting claims based on the contention that their employers have failed to properly pay for all required meal periods, rest breaks, and/or overtime. Unlike some state laws, the FLSA does not mandate meal periods and rest breaks, but FLSA impacts the duration, extent, and pay for these meal periods and breaks. Many employers – particularly those who have not traditionally allowed employees to work remotely – have overlooked the need for supplemental policies regarding payment for breaks and proper recordkeeping for such employees.
EMPLOYEE EXPENSES. The FLSA does not require an employer to pay or reimburse an employee for business-related expenses, such as telephone and computer expenses for working from home, unless those expenses cause the employee to receive less than the required minimum wage or overtime, or not receive their full salary. Many states, however, require employers to reimburse certain necessary expenditures incurred by employees within the scope and course of employment, including California, Illinois, Iowa, Massachusetts, Montana, New Hampshire, and Pennsylvania, as well as the District of Columbia.
WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT (WARN). As employers permanently close operations or lay-off a substantial percentage of workers during the pandemic, lawsuits are challenging whether notice obligations existed under WARN or similar state and local laws. Some “temporary” shutdowns or short-term mass layoffs do not require an immediate WARN notice, but notice is required when a covered “temporary” shutdown or mass layoff becomes longer-term. Many employers are approaching the deadline on whether their temporary shutdown has lasted long enough to require a WARN notice.
RETALIATION/WHISTLEBLOWER CLAIMS. When employees have sought benefits under FFCRA, asserted complaints or expressed concerns about safety, challenged the legality of pay and benefits during remote work, filed a complaint or charge with administrative agencies such as the EEOC, NLRB, OSHA, or MSHA, these employees are protected from retaliation. Consequently, when an employer must discipline or discharge such an individual for misconduct or include such an employee in a reduction in force, questions often arise as to the actual motivation for the discipline, discharge or layoff which, in turn, result in retaliation and/or whistleblower claims.
STATE AND LOCAL LAWS. States and local governments have passed laws, regulations, ordinances, resolutions and executive orders on a multitude of COVID-related issues, such as wearing masks and taking other safety precautions, guaranteeing workers’ compensation coverage (usually for healthcare workers or first responders), granting companies immunity from suit for exposure to COVID-19 (if certain minimum standards are met), and mandating other benefits. Do not overlook these laws and standards which are often more onerous than federal law.
GROUP BENEFIT PLANS. On April 29, the Departments of Labor and Treasury as well as the IRS issued an emergency final regulation extending certain deadlines to minimize the loss of employee benefits due to plan participants, beneficiaries, qualified beneficiaries, or claimants arising from their failure to submit requests, elections, COBRA premium payments, or appeals within the regular time limits. Employers, particularly those that administer their own benefit plans, must ensure that they do not deny benefits to someone (e.g., COBRA continuation) who did not respond within the old deadlines.
We trust this information will assist your efforts to navigate the pandemic. Please call for specific advice on these situations or other unique scenarios which you encounter because every situation is different, and the information provided in this e-lert is not legal advice on any specific situation.