What May Lie Ahead: The Onset of Potential EPLI COVID-19 Related Claims

The workplace landscape changed so quickly and dramatically amid the coronavirus pandemic. Many businesses were forced to close, reopen and close again; millions of employees were furloughed or laid off; and employers had to set up policies and procedures as scores of professionals and others were sent home to work.

This new environment has undoubtedly created a minefield for employers who may face an influx of employment practices-related claims that range from age and disability discrimination for refusing to accommodate employees who are more at risk for serious complications from COVID-19, to failure to accommodate ill or infected employees, wrongful termination for taking time off to take care of a family member with the virus, discrimination or hostile work environment claims based on COVID-19 diagnosis, wage-and-hour disputes, disclosure of private information, and other potentially litigious issues.

Let’s take a look at just some of these issues.

Wrongful Termination

Under state or federal law, employers cannot terminate employees for taking family or medical leave. In fact, federal coronavirus laws have set requirements for family and medical leave with the Families First Coronavirus Response Act. This requires businesses of 500 or fewer employees to provide 80 hours of paid sick leave and give employees up to 12 weeks of paid family and medical leave (FMLA). The FMLA is available to any employee who has been employed for at least 30 days if they have to quarantine because of exposure to COVID-19; have symptoms of the coronavirus, must care for a family member, and must care for children while schools are closed or daycare is unavailable.

Advise your clients to assess any employment decisions as to avoid retaliating against employees who take emergency sick leave or expanded FMLA leave under the Families First Coronavirus Response Act, and to speak with an attorney before taking action.

Invasion of Privacy

Temperature taking, which has been adopted by many businesses to help maintain a safe work environment, could lead to potential claims with privacy issues at the top of the list. Medical information must be kept confidential, with employers aware of state privacy law requirements, including mandatory notice requirements that might accompany screening measures. Discrimination is another potential hotbed. Employers must be consistent with who is being tested. For instance, a potential trouble spot could emerge if an employer tests employees who are a member of a protected class, but not others.

Workforce Reduction

During the shutdown and stay-at-home orders, employers were forced to make some tough decisions as to who to lay off and furlough and, again, when mandates were lifted, who to bring back to work once they were able to reopen for business. These workforce reduction measures may bring claims with regard to which individuals were let go and furloughed and brought back to work and the timing around such measures. These decisions must be made legally in a nondiscriminatory manner, and in compliance with wage-and-hour laws. If an employer has nonexempt employees and hourly workers who are telecommuting, the business is still subject to wage-and-hour laws for breaks and mealtimes and, most importantly, must keep track of the hours employees are working.

Unsafe Workplace

Complaints have already been filed with OSHA across a broad spectrum of industries with employees alleging that their employers failed to comply with local stay-at-home orders or health and safety regulations; did not implement a safe workplace; failed to provide hand-washing stations, sanitizers, masks or adequate protective gear on-site; or failed to maintain proper social distancing. While these types of claims would typically trigger Workers Compensation if an employee became ill on the job, in the event an employee was disciplined, demoted or let go shortly after raising the concern, employers can anticipate a retaliation claim with the potential for significant damages as a result.

During these unprecedented times, it’s important for employers to do everything they can to mitigate potential employment-related lawsuits, including consulting with an attorney to review all business practices and policies. Employers should keep track of official regulations and orders regarding the virus and employee telecommuting hours, and implement strict employee privacy protocols. In addition, it’s important to note that Employment Practices Liability Insurance (EPLI) policies vary from one carrier to the next, with different terms and conditions, exclusions, sub-limits, etc., and should be reviewed carefully.