Preparing for the Worst: Issues in Employment Law for Re-Opening Businesses

Dickinson Wright

Dickinson Wright

Businesses are gradually starting to re-open around the United States.  While the past months have been unprecedented and created numerous challenges for employers, it is important to remember that employment laws generally do not have any exceptions for pandemics.  For example, even though older persons appear to be more susceptible to COVID-19, employers may not prioritize older employees for furlough without likely violating federal and state age discrimination laws.  As employers begin the process of bringing back furloughed employees and making other employment decisions arising out of the COVID-19 crisis, they should prepare for an increase in employment-related litigation.

Employment lawsuits usually increase in times of economic turmoil.  But at no time in recent history have so many layoffs come in such a short period of time.  Ideally, an employer will utilize an objective standard to determine who to lay off in these situations (and will have documentation to support this decision). However, even objective standards can result in liability for illegal discrimination if they adversely impact a disproportionate number of employees in a protected category such as age or race.  Many states have also enacted emergency rules creating additional protection.  For example, in Michigan, an Executive Order was issued prohibiting retaliation against employees who stay home from work because they test positive for COVID-19 or live with somebody who has tested positive, under certain circumstances.  Somewhere in Michigan, an employer will likely become a test case for this law (which was not passed by the legislature).  Some states have created emergency rules creating a right to sick leave for employees who test positive.  Often, these hastily-enacted emergency rules can create huge problems for employers who want to comply with the rules, but are not even sure what is expected of them.

Another potential area of concern for employers are whistleblower complaints.  These days, it seems everybody is a public health expert who thinks they know what the law requires and what employers have to do to comply with the law.  Many of these “experts” end up making complaints to their supervisors or co-workers, and when they are later terminated for unrelated reasons, file a lawsuit claiming they were discharged because they claim they were a whistleblower.  Employers should expect a flood of these lawsuits within the next year.  Employees may complain about customers or co-workers not wearing masks, or not washing their hands enough, or not covering their coughs properly.  While employers should take these concerns seriously and follow guidance provided by the CDC and state health authorities, they should also recognize that such complaints could come back to haunt them down the road if one of these employees is terminated.  In these cases, employers should take extra care in documenting their response to these issues.

Employers will also encounter employees who want to come back to work, but are at a higher risk of contracting the virus because of an underlying health condition or because they are in a high-risk group.  As noted above, an employer cannot unilaterally decide to furlough or lay off such an employee without violating various discrimination laws.  However, if the employee identifies himself or herself as being at a higher risk, and requests some kind of an accommodation to allow them to continue to work, the EEOC has indicated that an employer is required under the Americans with Disabilities Act to attempt to reasonably accommodate those employers (for example, by allowing them to work remotely if possible).

Of course, there is always the chance that an employee does contract COVID-19 after businesses re-open.  The issue of liability in these situations, at the moment, is very uncertain.  The federal government is presently debating whether to provide some kind of immunity against COVID-related liability for businesses.  It is uncertain whether this legislation will pass, or to what extent immunity might be extended.  Most of the plans appear to focus on limiting liability from customers who may have been exposed to the virus by employees.  But what about an employee who contracts the virus from another employee?  Would businesses be protected in that situation?  How would one even go about proving that a plaintiff contracted the virus at work?  And if it can be proven that the virus was contracted at work, shouldn’t it be covered under worker’s compensation?

In Michigan, emergency rules passed as part of the COVID-19 response permitted first responder employees (including any employees of health facilities or agencies) to receive worker’s compensation benefits if they are “quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure, receives a COVID-19 diagnosis from a physician, receives a presumptive positive COVID-19 test, or receives a laboratory-confirmed COVID-19 diagnosis.”  However, outside of those employees, it is entirely unclear whether an employee who contracts COVID-19 will qualify for worker’s compensation.  It may be treated like the flu, which is generally not covered under worker’s compensation.  Or, if an employer has an outbreak at their work site, perhaps that might be adequate to show that the virus was acquired in the course of employment.

This is uncharted territory for both employers and attorneys.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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