Reopening a business during a pandemic is not easy. For many businesses, operational needs will clash with the duty to protect employees and customers against unreasonable health and safety risks. As governments begin lifting restraints on economic activity, businesses should consider how to reduce their legal risk before they reopen their doors.
As we discussed in our previous alert, employers have numerous legal obligations to protect employees and customers in the place of business. These include common law and statutory duties to prevent physical harm in the workplace, a duty to protect employee health information, and a duty not to discriminate or retaliate against employees in relation to workplace safety conditions.
As government agencies pivot toward guidance to assist employers reopening businesses, a picture is beginning to emerge of what the new "normal" might look like for employers operating during this time. We are starting to see the first wave of lawsuits and regulatory enforcement actions emerge. Here are some of the most notable developments that we are seeing, followed by some important takeaways for companies confronting this challenging environment.
- Medical Screening of Employees. The EEOC recently issued guidance that employers can test employees for COVID-19 before entering the workplace without running afoul of the Americans With Disabilities Act. According to the EEOC, this dramatic shift in employee health privacy rights is justified by the direct threat that COVID-19 presents to the workplace. This ability to test is not unfettered, however. Employers must ensure that testing is accurate and reliable, and testing cannot be a substitute for additional infection control practices.
- Unions Suing for Personal Protective Equipment. In Miami-Dade County, the local transit union has filed suit against the county, asking a judge to order N95 masks, wipes, hand sanitizers, and gloves for union bus drivers. The New York nurse's union has brought a series of similar suits against three New York hospitals, alleging a dangerous lack of personal protective equipment (PPE).
- Private Rights of Action for Retaliation. Individual plaintiffs have filed suits in several states, alleging that their employer terminated their employment for reasons related to COVID-19.
- In Pennsylvania, a former university employee filed suit in federal court, asserting claims for violation of federal law and alleging that he was terminated for sending an email to colleagues alerting them that a spouse of an employee had tested positive for COVID-19.
- In Chicago, a former nurse filed a whistleblower complaint against her former hospital employer, alleging that the hospital fired her for sending an email to coworkers warning them that the masks the hospital had issued them did not provide sufficient protection from the virus.
- In Dallas, a former general counsel of a real estate investment firm filed suit, alleging she was terminated while complying with a county law requiring her to shelter in place.
- There have been other nationally publicized instances of employees claiming they were terminated because they spoke out about inadequate PPE, exposing businesses to widespread negative publicity.
- OSHA Enforcement Actions. On April 8, OSHA issued a reminder to employers that it has enforcement authority over more than 20 whistleblower statutes that protect an employee's right to report unsafe working conditions. OSHA also recently issued guidance containing processes and procedures for investigating workplace safety complaints related to COVID-19.
Key Takeaways for Businesses. To ensure workplace safety and avoid liability, employers must make important changes as they reopen for business. Here are some guidelines for employers as they reopen:
- Allocate Corporate Resources. Designate a committee or team to oversee the return of employees to the workplace. Be deliberate, consistent, and sympathetic to employee concerns in the development and implementation of the plan.
- Health Screening. Require employees to notify the company of COVID-19 symptoms or exposure. The EEOC has approved COVID-19 testing and temperature screening for employees. Consider whether and how to implement these tools. Understand the confidentiality protections required by law. Develop policies for positive tests.
- Workforce Management. Determine whether employees can return all at once or in staggered waves. If staggering a return, develop a non-discriminatory plan. Evaluate whether the workforce should be subdivided or provided with alternating schedules to reduce headcount on site and utilize remote work where possible and appropriate. Understand the rights and obligations of the National Labor Relations Act and OSHA.
- Secure the Work Facility. Follow OSHA guidance to maintain a safe physical workspace. Sanitize, distance, and make physical modifications to reduce employee and customer proximity. Develop safe policies for worksite visitors, food delivery, mail services, etc.
As challenging as the current environment is, there are some silver linings for companies. Current business conditions present an opportunity for companies to reassess operational efficiency. Companies should be asking critical questions, such as: Are we the right size to meet the moment? Do commissions-based pay practices make sense now? Should functions that are currently outsourced be brought inside or vice versa? Companies should be mindful of employment law obligations as they answer these business questions.
Venable is actively monitoring these issues and working with clients to evaluate and respond to other emerging business, legal, and operational challenges arising from the pandemic. Visit Venable's COVID-19 Resource Center at Venable.com/COVID-19 to explore our extensive collection of analysis, webinars, and other relevant insights. You can also check out our upcoming video alert series, Back to Business – Considerations in the Wake of COVID, where our attorneys explore these and other issues related to getting back to business.