Ryan Schradin
The ongoing COVID-19 pandemic has been much more than just a public health crisis for the United States. The coronavirus has had a massive and negative impact on our nation’s companies and economy.
Employees have been forced from their offices for fear of spreading the virus around the watercooler and boardroom. And customers are shying away from practically every day-to-day consumer activity – from eating at restaurants, to traveling on airplanes, to going to movie theaters – for fear of contracting the virus.
A desire to stem the economic fallout resulting from the pandemic has many companies looking to reopen and get back to business as usual. Unfortunately, as COVID-19 case counts continue to rise in some states, and with no vaccine ready for wide distribution across the country, any attempt to return to “business as usual” could create immense risk and liability for companies.
As employers increasingly consider reopening their businesses, there are legal ramifications that they should consider. To educate them about what their legal and liability considerations should be, Paul Kennedy and Joshua Waxman, shareholders at global law firm, Littler, will be addressing the ACG membership and their guests at an upcoming virtual event.
The virtual event, entitled, “Reentry – Uncharted Territories with Employee Legal Issues,” will be held online on August 14, 2020. In advance of the event, we sat down with both Paul and Josh to discuss the current situation facing employers, and the questions that companies should be asking themselves as they consider reopening.
Here is what they had to say:
Corporate Growth, Capital Style (CGCS): Employers are obviously dealing with a very unique situation right now during the COVID-19 pandemic. What kind of legal concerns is this creating for companies? What kind of liability do they have if an employee gets sick?
Paul: These are unprecedented times and there are a variety of new laws that have been implemented. But companies aren’t just struggling with understanding and applying the new laws, they have to deal with the laws that already existed – for example, the Occupational Safety and Health Act and various leave laws that already exist.
They need to figure out how to manage their workforces and bring them back to work. But they have to do so in a way where they can avoid liability or minimize liability under things like leave statutes and pay statutes, such as the Fair Labor Standards Act, and disability statutes, such as the Americans With Disabilities Act.
There are a variety of different forces and rules at work here that could expose employers to liability. And that’s really what we’re focusing on. Just try and help minimize that exposure to liability.
Josh: I can just give you one simple example that almost all companies are dealing with. Just look at the concept of implementing temperature checks for employees, which many employers are considering for when they come back.
How employers communicate that to employees, and the consequences of implementing that policy, are important things to think about. If an employer requires an employee to [do a temperature check] at home before they drive to work, they might convert the employee’s commute into compensable work time because they technically started their workday with that temperature check.
We need to think about issues like that. Issues that could potentially cause additional expenses and risks to employers.
“Just look at the concept of implementing temperature checks for employees…how employers communicate that to employees, and the consequences of implementing that policy, are important things to think about.”
CGCS: There is a huge push right now to get employees back to work and back into offices. With mask-wearing becoming mandated in many states and many states seeing infection rates decreasing, do you see employers reopening their offices anytime soon?
Josh: I think the best answer is, “It depends.” If employers have been functioning well remotely and if there are added risks to going back in their geographic location, then there really is no reason to revert to in-person work.
Just think about trying to enforce social distancing in elevators if you work in a large, multi-floor building. Think about how difficult it would be to get employees in and out in the morning or at lunch. Employers can’t allow packed elevators like they could previously. So, I think that there are companies that have looked at how they’ve been performing during this period of time and, if they’re able to continue to work remotely, they certainly want to.
However, there are other industries where that’s not as much of an option. In those cases, employers have to experiment with systems and processes that will enable them to operate as close to normal. Adjusting to the new realities is essential for them because they otherwise can’t function at all. This is especially true for companies in industries like hospitality where there’s no remote work option available.
What I’ve seen is that it really depends on the client. I’ve had some clients that have brought all of their employees back. I’ve had some that have brought some employees back, and some that are looking to maybe make more cuts. It really depends on the industry and the company. There’s no “one size fits all” answer for everyone.
Paul: That’s completely correct. And this is a moving target because there’s so much uncertainty. Companies are trying to balance the need to get back to business and generate revenue with the safety and health of employees.
As employers, do we send people back into an office when we’re doing fine with the people working at home? Or do we have to get people back to work because we’re that type of company or operating in that kind of industry? This is something that every company has to ask themselves right now. Is it even broken? If not, should we try to fix it?
CGCS: What other legal concerns are employers facing as a result of the ongoing COVID-19 pandemic? Bankruptcy? Employment issues? Legal issues around terminations or layoffs?
Paul: As we discussed, there are many new policies out there that could open employers up to legal liability and risk. However, I think we expect more discrimination lawsuits where people in different classes are being treated differently. For example, if people are being asked to take leave because of reasons having to do with the economics of a business and they can’t bring everyone back, the companies have to look carefully at whether they’re disparately treating or impacting certain protected classes.
We expect to see a lot more litigation over these types of issues – companies applying policies in a disparate manner that result in an uptick in discrimination lawsuits as a result. In this environment, it’s essential that companies consider people in protected classes and make sure that they’re not in a position of being treated differently.
Josh: I think we’ll also see an uptick in issues related to expenses and potential expense reimbursement for the type of tools or equipment that folks are using to work remotely. Employers will need to think about whether they have to reimburse an employee for things like the cost of their Wi-Fi while they’re working remotely, because that’s really become their office for the last several months.
As Paul was alluding to, the leave issue has become very complicated.
Employers may have an employee that is in a high-risk group that may not feel comfortable coming back to the office. How do employers manage that from a leave perspective? How do they apply their leave policies?
I have one client that has an employee that’s worked remotely for the last three months. They now have to come back to work because they’re an office worker at a healthcare organization that is reopening and their job requires that they’re in the office. But this individual wants to continue to work remotely because they don’t feel safe.
Employers need to prepare themselves to manage those types of issues and concerns and apply their policies in a way that won’t incur liability.
CGCS: You’re both going to be speaking at an upcoming ACG National Capital event. What can attendees expect to learn? What topics are you planning to cover?
Josh: What we’re hoping to do is give attendees an overview of what we think may be some of the litigation risks that companies should be thinking about in the COVID-19 world and in their return to work environment. We want to flag some of the issues that we think are important for employers to be thinking about, and to discuss some ways that they can help minimize their risk as they’re trying to manage their workforce – both remotely and when folks come back to the office.
Paul: I’d say that we’re trying to help companies avoid stepping on land mines that are going to cause them trouble and expense in the very near future.
For additional information and to register online for the event, “Reentry – Uncharted Territories with Employee Legal Issues,” click HERE.