BOMA New York recently hosted a webinar that described current government guidance and areas of potential legal liability in the workplace due to the impact of the ongoing COVID-19 pandemic and the best practices recommended by legal experts to respond to the pandemic while continuing business activity.
The presenters were Kim Lunetta, Alana Genderson, and Daniel Kadish, all senior attorneys at the law firm of Morgan, Lewis & Bockius, LLP. Their presentation, entitled “Minimizing General & Employment Law Liability,” offered general best practices on how to best prepare for – and respond to – COVID-19 workplace issues while minimizing legal risks associated with the pandemic.
Their unequivocal message: “There has been a huge impact on the workplace, including, litigation already. Take this seriously. Be prepared.”
As the introductory speaker, Kadish reported that there have already been at least 928 claims filed in court by employees or former employees regarding COVID-19 employment issues. The largest number alleged wrongful termination of employment – with discrimination claims and unsafe workplace conditions/retaliation claims following closely behind.
Citing a “growing concern” regarding the claims, Kadish also cautioned against employers requiring their employees to sign COVID-19 liability waivers. “This is too good to be true,” he said.
On the other hand, as COVID-19 community spread increases, he believed that it would become more difficult for claimants to say that they contracted the disease at the workplace and reiterated the importance of implementing COVID-19 safety precautions as a first line of defense against potential claims.
An overarching theme cited by the presenters was OSHA’s blanket requirement that all employers provide their employees with a workplace free from “recognized hazards.” Citing potential whistleblower claims, Ms. Lunetta urged employers to take proactive steps to avoid the possibility of an agency investigation at their workplace.
Lunetta advised making a concerted effort to rigorously follow all workplace COVID-19 safety requirements, including local guidelines, and to adopt recommendations from these agencies when feasible.
Nonetheless, all three speakers agreed that COVID-19 safety and prevention standards can be unclear at times, and that makes the legal situation far from being defined clearly.
Genderson explained that OSHA has not passed a specific standard to govern COVID-19 workplace issues. Instead, she explained that OSHA relies heavily on Section 5(a)(1) of the Occupational Health and Safety Act, which imposes a “General Duty” on all employers to keep employees safe, along with other preexisting OSHA standards.
Kadish cited a “huge number” of complaints and cases related to the concept of “accommodation.” For example, if an employee were afraid to use public transportation, would an employer be obligated to provide car service? The speakers agreed that that probably would not be required by a court, although all employers must engage in an interactive process to try to accommodate disabilities if a fear rises to that level.
In addition, many claims have been filed related to work-from-home under wage and hour law, such as reimbursable expenses and even paid meal breaks.
The presenters also reported instances of alleged violations of collective bargaining agreements and furlough and layoff infractions by employers. These include failure to provide WARN (Worker Adjustment and Retraining Act) notices that offer protection to workers, their families, and communities by requiring large employers to provide notice 60-days in advance of covered plant closings and covered mass layoffs. Other claims concerned alleged failures to make final salary payments, and termination eligibility notices.
The presenters from Morgan, Lewis & Bockius, LLP offered recommendations for employers to follow. Overall, they said to follow existing guidance from OSHA, the CDC and state and local health authorities. Best practices can include: preparing a COVID-19 response plan for your workplace, implementing social distancing and face covering requirements, conducting a hazard assessment, and determining PPE needs at your worksites.
Genderson said, “As an employer, it is your job to determine what PPE, if any, is required.” The presenters urged employers and building owners to follow OSHA’s “expectations” for preparing safe workplaces, especially regarding HVAC systems and filtration systems.
In the event that an employee is diagnosed as COVID-19 positive, a trained HR professional should conduct a “cooperative dialogue” with the employee, keeping the worker’s identity and privacy paramount. Employers should consider gathering information such as when symptoms first appeared, when the person tested positive, where the person went in the building, and who they were in close contact with – and may even be required to do so under state or local law.
In the event of a positive test result, in addition to being required to notify health agencies in certain jurisdictions, employers should consider sending out a location-wide notice, giving employees peace of mind that “all close contacts” have been informed – and, in serious cases or where required by state or local law or the health department – consider closing a building or office altogether.
Above all, the presenters said that focusing on positive communication with employees is key to implementing consistent standards and mitigating risk. For example, employers should be open to discussing accommodations to employees’ leave requests. “What would be the best paid or unpaid leave accommodation that would allow the employee to return to work?”
The guiding principle from the presentation is that preparation for employee concerns, particularly when reopening facilities and bringing people back to work is essential to minimizing risk and maintaining productivity and employers should take care to follow applicable COVID-19 guidance and document the steps they have taken to do so.