As it rounds the bend to its one-year anniversary as a worldwide pandemic, COVID-19 still has attorneys scrambling on a number of fronts — not the least of which is employment law. Employment attorneys have been fielding calls on the subject since it became a topic of conversation.
“The questions started right away,” said Joni Thome, a founding partner at Baillon Thome Jozwiak & Wanta in Minneapolis.
Many COVID-19 employment litigation claims have to do with issues frequently found in employment claims: discrimination, leave, retaliation, wrongful discharge and whistleblower claims.
But even if the underlying topics of coronavirus-related employment claims are familiar, lawyers could do well to brace for a continuing wave of those claims. Just as the recession of 2008 led to a jump in employment lawsuits, hundreds of labor and employment suits have been filed over COVID this year.
A judge ruled in favor of a kitchen worker who filed a restraining order case against a Dallas restaurant that had stopped giving her hourly work for violating its no-mask policy. An employee of a Kentucky funeral home reached a settlement with her employer after she said she was fired for trying to follow the state governor’s recommendation to limit the size of gatherings.
And recently, food giant Tyson came under scrutiny when a wrongful-death suit against the company alleged that managers at its Waterloo, Iowa, pork-processing plant made private wagers about how many of their employees would catch the virus.
While employees look into how to protect their rights, employers in turn are figuring out how to walk the line between keeping workers safe and keeping them working.
“The most immediate thing they’re concerned about, naturally, is how to get people back to work,” said Alec Beck, a partner at the Minneapolis office of Barnes & Thornburg. “But at the same time, they want to know what they’re supposed to do and what they can do and should do.”
Measures employers should take to safeguard their workplaces aren’t definitive. Fortunately for employers and employees alike, measures were in place prior to COVID that could at least tangentially address potential concerns related to the virus.
The Minnesota Department of Labor and Industry, which handles workers’ compensation, has put out guides to personal protection of health care workers and child care workers. OSHA offers requirements and guidance pertaining to employee safety in the workplace and employee rights to refuse work.
Also, the Americans with Disabilities Act has requirements and considerations pertaining to covered disabilities, interactive dialogues and reasonable accommodations.
“It’s a big patchwork of protections,” said Beck. “But if an employee gets COVID, they’re probably protected in a number of ways.”
Thome noted that federal paid leave laws (and some comparable state and local laws) apply to COVID. Minnesota has unemployment considerations pertaining to employee refusals to return to work based on fear of COVID-19 in the workplace.
“We try to offer guidance to people in those types of situations,” she said. “Claims primarily come from people with pre-existing conditions and even in a COVID-safe environment cannot safely be in the workplace. They’re denied requests to work from home.”
Thome said that a common complaint from employees has been that they have been called back to work before they’re ready to do so, “even though working from home up to that point hasn’t been a problem.”
Anne Robertson, an attorney with Mid-Minnesota Legal Aid’s Disability Law Center, said the key phrase to remember for both employees and employers is “reasonable accommodation.” While its application can vary, that idea applies to changes to a job or workplace that will enable an employee to do his or her work despite having a disability. The ADA mandates that employers provide reasonable accommodations to qualified employees unless doing so would pose an undue hardship.
“Even if the employer cites a hardship, such as cost, it’s not necessarily reasonable,” said Robertson. “The employee and employer are supposed to go through an interactive process to see if there’s common ground they can reach.”
Robertson suggested that employees with concerns about COVID-related work issues check with their medical providers to make sure that they have medical support to make the link between their disability and the reasonable accommodations they require.
To protect their own interests, employers are advised to make sure that its policies relevant to COVID are up to date, including those having to do with non-harassment, anti-discrimination, anti-retaliation, the FMLA, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act under the Families First Coronavirus Response Act (FFCRA).
(The FFCRA provides funding for free coronavirus testing, 14-day paid leave for workers affected by the pandemic, as well as increased funding for food stamps.)
Employers are also encouraged to train managers, supervisors, and human resources professionals on steps to take if an employee wants to make use of company policies or has concerns about company noncompliance.
“We’re just advising employers to follow the CDC guidelines as closely as they can,” said Beck. “Those guidelines are pretty conservative, so following them shouldn’t create a hardship. If employers do that, they should meet any duties and shouldn’t be liable if one of their employees gets COVID.”
“As long as there are restrictions from the state,” added Thome, “people should presume that those restrictions apply inside the workplace.”
The Disability Law Center of Mid-Minnesota Legal Aid offers a fact sheet about COVID-19 and reasonable accommodations in the workplace. It can be found here.