As more companies and offices are opening, there are two predominant questions on every employer’s mind. First, how do we protect our employees? And second, how do we protect our businesses from a lawsuit? In prior updates, I have outlined various steps to take to fully protect the health and wellness of employees, customers and families. That begs the question: What about our businesses?
Sadly, as increasing numbers of employees return to work, employers should be aware that several COVID-19-related lawsuits raising Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) concerns have already begun to emerge. Following is a summary of what employers need to know in order to minimize the likeliness of being on the receiving end of such a claim.
An emerging trend
Recent lawsuits filed across the United States are starting to show a particular trend of litigation regarding employees with preexisting health care conditions. For example, a lawsuit filed in federal court in Florida at the end of May alleges that an employer failed to provide FMLA leave for an immunocompromised employee during the COVID-19 quarantine. In that case, the employee alleged that he was terminated shortly after inquiring about FMLA leave due to his own risk factors.
In a similar case, in Pennsylvania, an employee with an alleged, elevated risk for COVID-19 claims he was terminated after he attempted to inquire about the option of using leave under the FMLA. On the same day, a separate action was filed in New Jersey alleging that yet another employer terminated an employee with a preexisting heart condition rather than provide him with requested leave under the FMLA, or as an accommodation under the ADA.
In each of these cases, the plaintiff alleged needing time off from work due to a heightened risk of COVID-19-related complications arising from preexisting conditions. Likewise, in all cases the employees claimed that they were terminated once they inquired about their options for leave.
As employers familiar with workplace litigation know, the mere fact that an allegation occurs does not mean that any laws were actually violated, or that the allegations even have merit. However, the fact that claims following a similar pattern are being filed in different states in such a short period of time does indicate that employers should be on guard against risks for such claims. Specifically, employers in Oregon should be mindful of taking any adverse action following an employee’s inquiry into their rights under FMLA, the Oregon Family Leave Act, or Oregon protected sick leave.
Avoiding similar claims
Employers familiar with federal and state discrimination laws as well as the requirements for an administrative process prior to lawsuits should be aware that such an initial process does not apply to FMLA claims. Because there is no required administrative process, companies could realistically face a federal lawsuit within days of an adverse employment action that can be connected to an FMLA benefit request. For this reason (among others), employers should be diligent in quickly responding to employees requesting time off due to a COVID-19-related issue, or otherwise requesting an accommodation due to COVID-19 or another underlying health condition.
For example, while more and more employees are returning to workplaces, inquiries from others about continuing to work from home should be treated as possible requests for reasonable accommodation under the ADA. All managers should know to escalate such requests to the appropriate person within their workplace. Employers should train their managers/supervisors to not reply with an off-the-cuff remark that could give rise to a claim of discrimination or retaliation.
Assigning a person within an employer’s workforce to whom such requests can be routed can ensure that they are responded to timely and consistently. A few options could be a human resources professional, or the designated “Social Distancing” chairperson who ensures compliance with Oregon Health Authority guidance. If a “Social Distancing” chairperson has not been designated, I recommend doing so because it is likely required for compliance with Gov. Brown’s Executive Order 20-12.
It is also important to document all discussions regarding requests for leave or other accommodations. A paper trail that can show requests were responded to and relevant information was provided can be extremely helpful in defending claims in which the plaintiff may allege that his or her requests were ignored. Likewise, employers should document the rationale behind decisions to terminate.
Just because an individual inquiries about FMLA/OFLA/state-protected sick leave does not mean he or she cannot be terminated for another reason or included in a layoff. However, an employer’s ability to explain why an employee was terminated is essential. Once a lawsuit or charge of discrimination is filed, the employer is obligated to respond with legitimate, nondiscriminatory reasons for its employment decisions. By collating clear and detailed paperwork prior to a termination, an employer will be in the best position to defend its decision if a discrimination or retaliation claim arises after the employee is let go.
More lawsuits likely
Employers across Oregon should be aware of the lawsuits that may be coming. The plaintiffs’ bar will take advantage of this opportunity and file lawsuits similar to the ones noted above. For additional information about COVID-19-related litigation being filed across the country, check out Fisher Phillips’ COVID-19 Employment Litigation Tracker on our website.
Employers are encouraged to contact their attorneys. Also, learn more by reviewing Fisher Phillips’ “BEYOND THE CURVE: Back-To-Business FAQs For Employers.”
Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or email@example.com.
The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the DJC guarantees the accuracy or completeness of any information published herein.