During the COVID-19 pandemic, employers have faced new federal, state, and local legislation and guidelines as well as an onslaught of information from media sources as they have tried to understand the implications for their workplaces, keep their businesses afloat, and remain in compliance with all laws. Despite this, the pandemic has created an emotional, physical and financial toll on employees, and has thus generated a heightened perception of wrongful employer actions resulting in the filing of many types of individual and class action claims.
Besides discrimination and retaliation claims, there have been claims for issues such as breach of contract, disregard of constitutional rights, wage and hour matters, employer negligence and workplace safety, workers’ compensation rights, misclassification of employees, improper notifications under the Worker Adjustment and Retraining Notification (WARN) Act, errors in the application of the Family and Medical Leave Act (FMLA), and refusal for reasonable accommodations under the Americans with Disabilities and Its Amendments Act (ADAAA). While some of the claims filed may not specifically pertain to a COVID-19 situation, information from the media sources appears to be tempting employees to seek legal counsel and more claims are expected in the upcoming months. The most common claims include:
Wage and Hour Claims
Wage and hour claims have been filed by employees who don’t believe they were rightfully paid for their work during the COVID-19 stay-at-home orders. This includes the payment of overtime to nonexempt employees for all hours worked over 40 in a workweek. It also includes time spent having temperatures taken and symptoms recorded before entering the workplace prior to a shift, time spent cleaning and disinfecting equipment at the beginning or end of a shift, and “donning and doffing” time, for employees who are required to put on required personal protective equipment (PPE) at the beginning of a shift and then removing the PPE at the end of a shift. There are also claims regarding the minimum wage requirements, not paying sick pay as required by law, and not reimbursing business expenses.
Workplace Safety Claims
Many workplace safety claims have focused on situations where social distancing is impossible, working remotely is not allowed, accommodations are not made, or employees feel that they aren’t provided the necessary PPE to remain safe while in the workplace. The Occupational Safety and Health Act (OSHA) General Duty Clause states “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…” (https://www.osha.gov/laws-regs/oshact/section5-duties). Some of these claims have asserted that COVID-19 is a recognized hazard and that their employer has not provided the standard of protection that OSHA requires. While it may be difficult to prove that an employee contracted COVID-19 in the workplace, an employer who has not implemented a safety plan or observed OSHA and Centers for Disease Control and Prevention (CDC) guidelines, such as social distancing and facial coverings, will be at a much higher risk of this type of claim.
Workers’ Compensation Claims
Workers’ compensation provides both medical care coverage and wage replacement benefits to employees for qualifying workplace illnesses and injuries. Typically, common illnesses like influenza are not covered under workers’ compensation benefits. However, employees who are able to present proof that COVID-19 was contracted in the workplace may be eligible for benefits in some states. Further, an employee who had a workers’ compensation injury or illness claim just prior to their employer furloughing, laying off, or terminating them may be motivated to file a claim based on a perceived connection between the injury or illness and the employment action.
Family and Medical Leave Act (FMLA) and Americans with Disabilities Act and Its Amendments Act (ADAAA) Claims
Claims have arisen when an employee believes they need an adjusted work schedule, remote location, adjustment in duties, or time off from work because they have an increased risk of contracting COVID-19 or other COVID-19 related reasons. In many of these claims, employees have been terminated following a request for leave or a request to work from home, and there is a perceived connection between the termination and their request.
Discrimination and Retaliation Claims
There have been multiple claims related to discrimination, and retaliation since the pandemic began. While each claim is made under different circumstances, examples of situations triggering claims include employees who they feel are singled out for disciplinary action while working remotely, employees who believe their age is a factor when they are terminated while younger coworkers remain employed, and employees who are not allowed to work remotely even though their coworkers are working remotely.
It is expected that the number of workplace claims may continue to increase as employers re-open their workplaces. As employers seek to follow the federal, state and local regulations for the COVID-19 pandemic, they are encouraged to also keep in mind guidance provided by the Equal Employment Opportunity Commission (EEOC), and federal, state, and local anti-discrimination laws, including but not limited to:
- Americans with Disabilities and Its Amendments Act (ADAAA) – Reasonable accommodations are required by most employers with 15 or more employees, unless the accommodations create an undue hardship on the business. This could include allowing an employee who has underlying medical conditions to work remotely until the pandemic is over.
- Pregnancy Discrimination Act – Reasonable accommodations for pregnancy-related medical conditions may need to be provided upon an employee’s request but employers should not assume a need or refuse to allow an employee with pregnancy-related medical conditions to work in the workplace due to their condition, even if it is out of concern for the employee.
- Age Discrimination in Employment Act (ADEA) – Employees over the age of 40 are protected under the ADEA. Due to this, employers should act with caution and review all documentation if they plan to lay off or terminate an employee protected by this Act.
During this unprecedented time of workplace claims, employment actions such as demotion or termination must be based on employee performance or business necessity. Employers are encouraged to be flexible with their employees, treat employees in a consistent manner, and of course, document their safety plans as well as employment decisions in order to protect themselves in the event that a lawsuit is filed against them.
For additional information on new federal, state, and local legislation and guidelines due to the COVID-19 pandemic and workplace claims, please contact us at www.newfocushr.com.
Written By: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant