Throughout the COVID-19 pandemic, contractors have found themselves implementing new policies addressing jobsite safety, layoffs, pay cuts and workplace conditions. Some employers may face employment-related claims alleging wrongful termination, discrimination and retaliation.
This article will serve as a guide to the most common causes of action that could lead to employment-related litigation. Employers are strongly recommended to seek legal guidance when faced with the claims discussed herein.
Workplace health and safety
Claims have already been filed that allege unsafe workplaces have exposed workers to COVID-19, or that an employer failed to provide hand-washing stations, sanitizers, masks or adequate protective gear. Other claims allege that employees have been unable to practice jobsite social distancing.
Leave policies
COVID-19 spurred the passing of the Families First Coronavirus Response Act (FFCRA), which requires employers with 500 or fewer employees to offer expanded paid family or medical leave, and emergency paid sick leave.
An employee who is wrongfully denied expanded leave or not paid during the leave may have a cause of action to recover damages (lost wages, salary, benefits) and actual monetary losses resulting from the denial of leave (e.g., the costs of child care), with interest.
Discrimination
Laid-off employees may bring claims under anti-discrimination laws, challenging the reason they were let go. Employers should be careful to use objective means when deciding which employees to lay off. Retain records of the criteria used, and evaluate whether any disparate impact may result. Employees might also bring claims based on an employer’s failure to accommodate employees with a bona fide disability related to COVID-19.
[Related: Curing understaffed builders: A dose of diversity]
Retaliation
Most laws contain provisions making it unlawful to retaliate against employees who oppose unlawful employer actions. There are numerous claims alleging retaliation for objecting to unsafe working conditions. Other retaliation claims may arise out of complaints that the employer wrongfully denied a request for leave.
The best way to protect against a retaliation claim is to document the reasoning behind your employment decisions.
Wrongful termination
With the increase in layoffs, COVID-19 has increased wrongful termination claims. Examples include claims that an employee was terminated for complaining about a lack of personal protective equipment or about co-workers with COVID-19 symptoms.
To mitigate a wrongful termination claim, proceed carefully upon receiving complaints. Maintain meticulous records, and document the investigation process and the ultimate reasoning behind termination.
Disclosure of confidential information
In order to maintain the privacy of COVID-19-related medical documents, the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file.
Moving forward, consider the following:
- Develop a return-to-work plan that contemplates federal and local safety guidance on personal protective equipment, workspace hygiene, and social distancing measures.
- Consult with legal counsel when implementing policies to ensure compliance.
- Ensure policies are implemented in a fair and equal manner.
- Ensure proper communication and training to all employees, particularly managers responsible for implementation.
- Maintain confidentiality of all employee medical-related information provided.
- Monitor new federal, state and local guidance, as well as legislative enactments
Troy D. Sibelius, CIC, CRM, FASLA, is executive vice president for The Buckner Company, commercial property and casualty insurance brokers in Colorado, Utah and Idaho. Visit buckner.com or call 303-756-9909 for more information.
