These are uncertain times for businesses and their in-house counsel. On one hand, most are eager to reopen after being closed for up to four months. On the other hand, many are understandably wary of reopening in a changed legal landscape that features its own set of new challenges.
Counsel for companies that decide to reopen will need to consider compliance with a new regulatory regime, employee concerns about returning to work, and potential sources of liability that simply did not exist before the outbreak of the COVID-19 pandemic.
Some companies, especially those whose employees are adept at working remotely, may decide that the potential headaches associated with reopening aren’t worth it. But many don’t have a choice. And others that don’t absolutely need to reopen will still want to give the prospect serious thought, especially as the situation in New England and around the country gradually improves.
Here are some thoughts for in-house counsel who are preparing to confront the new legal issues that may arise in the “new normal.”
The reopening plan
One of the first steps that any in-house counsel will want to take prior to reopening is to assist in the development of a written reopening plan to help ensure the safety of workplace visitors and employees and compliance with COVID-19 related regulatory requirements. Indeed, some states require the adoption of written plans as a prerequisite to reopening.
Many of the elements of any good reopening plan — such as limitations on office occupancy, mandatory social distancing, face coverings, hand-washing stations, and frequent cleaning of doorknobs, elevator controls and restrooms — are straightforward (if not necessarily easy to implement). But others will implicate some thorny employment law issues.
Checking employee health
For example, employers will obviously need to ensure that employees who experience COVID-19-like symptoms do not report to work (or go home if they are already there).
But there’s a wrinkle: As a general rule, the Americans with Disabilities Act prohibits employers from conducting health examinations or asking existing employees about medical issues. 42 U.S.C. §12112(d)(4)(A).
Luckily, the ADA makes an exception for health-related inquiries that are “job-related and consistent with business necessity,” and the Equal Employment Opportunity Commission has issued guidance providing that, due to the “direct threat” that an employee suffering from COVID-19 would present to the workplace, inquiries about possible COVID-19 symptoms are consistent with this standard.
Thus, employers can make health-related inquiries and conduct medical examinations in order to help combat the coronavirus. Among the steps that employers are permitted to take under the “direct threat” exception are:
- asking employees about possible viral symptoms;
- performing temperature checks;
- administering COVID-19 tests;
- requiring any employee who may have been exposed to the virus not to come into work (or go home); and
- delaying any employee’s return to work after visiting a COVID-19 hotspot (if doing so would be consistent with federal or state health guidelines).
However, in-house counsel should keep in mind that just because they can ask employees about COVID-19 issues does not mean that they can disclose any of the information they learn to the outside world; the information they gather remains strictly confidential.
Reluctance to return
That covers keeping employees away from work. But what about the converse: an employee who does not want to return to work because of the risk of being exposed to the virus?
Businesses have broad authority to direct the activities of their employees. Generally speaking, that authority encompasses the right to require employees to work from the office, rather than from home.
The risk of a potential lawsuit or regulatory complaint makes it doubly important for any reopening business not only to make sure that it has a written reopening plan, but that it sticks to that plan in the long months ahead.
But just because a business typically has the authority to require employees to come into the office does not mean that they necessarily should use it. Employees will often have good-faith concerns that they could be exposed to COVID-19 at work. To require them to return to the office may be bad for both public relations and for employee morale.
That said, there are obviously some situations in which businesses will want employees who have been working from home for the past few months to come back into the office. But before they make that decision, their counsel will need to determine whether the law requires an accommodation.
The first law that may require an employer to permit an employee to work from home is the Families First Coronavirus Response Act, which was enacted by Congress as the pandemic worsened in March.
The FFCRA amended the existing Family and Medical Leave Act (which permits employees to take leave in case of their own illness or that of a family member) to require employers with fewer than 500 employees either to grant leave to employees to care for someone who is quarantined or for a child whose school or day care is closed due to the pandemic.
If an employee requests leave for one of those purposes (and has not recently taken FMLA leave), then the request must be granted in almost all cases. (There is an exception for employers of fewer than 50 people, but only where granting an accommodation would jeopardize the business’s very existence.)
Next, counsel should consider whether the employee who is requesting to work from home (or a similar accommodation) qualifies as “high risk,” either because the employee is over the age of 60 or suffers from a preexisting health condition. That matters from an employment law perspective for two reasons.
First, under the ADA, businesses need to make reasonable accommodations for employees with disabilities unless the accommodation would present an “undue hardship,” 42 U.S. Code §12112(b)(5)(A).
Second, many states’ reopening plans call on employers to permit employees to work from home if at all possible. Therefore, to refuse to permit an at-risk employee to work from home might arguably be inconsistent with a clearly stated public policy (and therefore be unlawful).
For both of these reasons, if a high-risk employee asks to work from home, businesses and their in-house counsel must carefully consider whether permitting the employee to do so would be practical or not.
Potential COVID-19 related liability
A potential employment discrimination claim is certainly something that any in-house corporate counsel would want to avoid, but ultimately it’s one of the less serious sources of potential legal liability for reopening businesses. An even greater concern is that someone alleges catching the virus at the workplace itself.
Employees generally cannot make such claims directly, because most states have decided that a workers’ compensation claim constitutes the exclusive remedy for onsite employment injuries.
But that doesn’t stop employees from complaining to the Occupational Safety and Health Administration, alleging that their employer is maintaining an unsafe work environment. OSHA has not promulgated regulations that mandate anti-COVID measures directly. But under OSHA’s “general duty” clause, employers are required to keep the workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. §654, 5(a)(1). A failure to follow appropriate social distancing requirements suggested by federal authorities or required by state law could constitute a violation of that requirement.
Moreover, while employees are barred from suing their employer, no such restriction applies to visitors, to whom the business owes a duty of care to keep its premises reasonably safe.
Arguably, a failure to take appropriate measures to prevent the spread of COVID-19 at the workplace could constitute a breach of this duty and lead to a lawsuit. The plaintiff in any such litigation would have to prove that he or she contracted the virus onsite. That would present a significant obstacle, since it would be almost impossible to say for sure that the plaintiff contracted the virus on the company’s premises rather than somewhere else.
But it is important to remember that a civil litigant need only prove a claim by a preponderance of the evidence in order to recover. A plaintiff could satisfy this burden if there were a COVID-19 outbreak affecting multiple employees of the same business, or by testifying as to a lack of contact with anyone else during the weeks prior to contracting the virus.
So while the threat of virus-related litigation in case of reopening remains very low, it is not so remote that it should not be taken seriously.
None of the obstacles to reopening described above is insurmountable. But all of them do need to be taken seriously and considered by in-house counsel before a business decides to reopen.
In particular, the risk of a potential lawsuit or regulatory complaint makes it doubly important for any reopening business not only to make sure that it has a written reopening plan, but that it sticks to that plan in the long months ahead.
It’s the right thing to do from a moral perspective and from a business perspective as well, and will no doubt be worth the effort as companies adapt to the “new normal” in the months ahead.
Michael Brier is an attorney at Gesmer Updegrove in Boston, where he maintains a diverse litigation practice with a particular emphasis on complex business and employment disputes.