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Employment Law and COVID 19 Chamber Chat

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Employers are likely to see an increase in COVID-19-related lawsuits as more and more people head back to work amid the lifting of coronavirus-related restrictions.

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Employment Law and COVID 19 Chamber Chat

  1. 1. © 2020 Lerch, Early & Brewer Presented by: Employer Liability & COVID-19 Marc Engel, Julie Reddig & Michael Neary Employment Attorneys Lerch, Early & Brewer 1 Tuesday, September 22, 2020
  2. 2. © 2020 Lerch, Early & Brewer 2 Possible Discrimination Claims Employer Liability and COVID-19 Discrimination claims challenging the reason why an employee was selected for termination, furlough or some other type of employment action (such as a reduction in pay). 1. May be based upon age. 2. May be based upon actual or perceived disability. 3. May be based upon race. 4. May be based upon ethnicity. 5. May, in certain jurisdictions, be based upon family responsibilities.
  3. 3. © 2020 Lerch, Early & Brewer 3 Possible Discrimination Claims CONTINUED Employer Liability and COVID-19 Discrimination claims may be based upon decisions made by employers regarding who is required to return to work. 1. May be based upon age. 2. May be based upon disability. 3. May be based upon race. 4. May be based upon ethnicity. 5. May, in certain jurisdictions, be based upon family responsibilities.
  4. 4. © 2020 Lerch, Early & Brewer 4 Possible Contract Claims Employer Liability and COVID-19 • Review employment agreements (if any). • Comply with collective bargaining agreements. • Comply with offer letters and handbooks.
  5. 5. © 2020 Lerch, Early & Brewer 5 Possible Wrongful Termination Claims Employer Liability and COVID-19 • Termination for refusing to return to work. • Termination for complaints about a lack of personnel protective equipment (“PPE”). • Termination for complaining about inadequacy of PPE. • Termination for complaints about co-workers reporting to work with COVID-19 symptoms.
  6. 6. © 2020 Lerch, Early & Brewer 6 Workplace Safety Claims Employer Liability and COVID-19 • Claims brought under state and federal safety laws. • Claims based upon violation of government established protocols. • OSHA regulations provide employees with the right, in certain situations, to refuse to return to work if there is a hazardous condition at the workplace that exposes employees to a real threat of death or serious injury.
  7. 7. © 2020 Lerch, Early & Brewer 7 Claims Based Upon Federal WARN and State “Mini-WARN” Laws Employer Liability and COVID-19 • Federal WARN Act – Applies to employers with 100 or more employees – Requires, in certain circumstances, that employers subject to the Act provide at least 60 days’ notice before a mass layoff or closing a plant. – Insufficient notice can result in damages for back pay and penalties. – Unclear whether the unforeseen business circumstances exception to federal WARN applies to COVID-19 situations.
  8. 8. © 2020 Lerch, Early & Brewer 8 Employer Liability and COVID-19 Claims Based Upon Federal WARN and State “Mini-WARN” Laws CONTINUED • [NEW] Maryland “Mini-WARN” statute scheduled to take effect October 1, 2020. • Applies to employers operating an industrial, commercial, or business enterprise in Maryland that employ at least 50 employees. The law does not apply to employers that have been doing business in Maryland for less than one year. • The act applies to “reductions in operations” which is defined as (A) the relocation of a part of an employer’s operations from one workplace to another existing or proposed site or (B) the shutdown of either a workplace or a portion of the operations of a workplace that reduces the number of employees by the greater of at least 25 percent or at least 15 employees over any 3-month period. • 60-day notice period. • Significant penalties for violations. • Unlike federal WARN, the new Maryland law does not have exceptions for “unforeseeable business circumstances” or “natural disasters”
  9. 9. © 2020 Lerch, Early & Brewer 9 Retaliation and Whistleblower Claims Employer Liability and COVID-19 • Termination as a result of complaining about workplace safety issues. • Termination as a result of employees taking protected leave.
  10. 10. © 2020 Lerch, Early & Brewer 10 Claims Based Upon Disclosure of Confidential Information Employer Liability and COVID-19 • ADA requires that medical information about employees be stored separately. • Possible HIPAA claims.
  11. 11. © 2020 Lerch, Early & Brewer 11 Best Practices Employer Liability and COVID-19 • Update leave policies. • Establish a written remote work plan. • Determine essential and other employees that “need” to return to work. • Review and update accommodation policies. • Train managers on managing remote work employees and employees returning to work. • Document performance issues. • Establish criteria for layoffs, furloughs and other staffing decisions. • Centralize hiring and termination decisions. • Confirm existence of applicable employment and other insurances.
  12. 12. © 2020 Lerch, Early & Brewer 12 Employer Liability & COVID-19 Employer Liability and COVID-19 Liability arising out of employer’s: • Refusal to provide reasonable accommodation; • Failure to provide paid leave for COVID-19 related reasons; and • Retaliation
  13. 13. © 2020 Lerch, Early & Brewer 13 Accommodations related to COVID-19 Employer Liability and COVID-19 • ADA requires reasonable accommodations that do not impose an undue hardship to the employer • Disability = mental or physical impairment that substantially limits a major life activity – Many of the conditions that place an employee at high-risk for contracting COVID-19 – Pre-existing mental health conditions exacerbated by COVID-19
  14. 14. © 2020 Lerch, Early & Brewer 14 Employer Liability and COVID-19 • Request for continued remote work • Request for changes to safety/PPE rules Accommodations related to COVID-19
  15. 15. © 2020 Lerch, Early & Brewer 15 Employer Liability and COVID-19 • To avoid claims of failure to accommodate: – Engage in the interactive process – Perform an individualized inquiry – What else can the employer do to allow the employee perform the essential functions of the position without undue hardship? See Job Accommodation Network – Temporary accommodation – Leave as an accommodation Accommodations related to COVID-19
  16. 16. © 2020 Lerch, Early & Brewer 16 Employer Liability and COVID-19 • State and Local Sick and Safe Leave: – The Maryland Healthy Working Families Act – The Montgomery County Earned Sick and Safe Leave Law • The Families First Coronavirus Response Act • The Federal Medical Leave Act (FMLA) • Additional Employer provided leave – PTO, long-term medical leave, etc. Employee Leave
  17. 17. © 2020 Lerch, Early & Brewer 17 Employee Leave Leave for: • Employee with COVID-19 or symptoms = FFCRA (EPSLA if seeking medical diagnosis and unable to work) , “old” FMLA (if serious health condition), Paid Sick and Safe Leave, PTO • Employee with COVID-19 exposure = FFCRA (EPSLA advised by a health care provider or subject to isolation order related to COVID-19); Paid Sick and Safe Leave, PTO • Employee caring for COVID-19 positive Family Member = FFCRA (EPSLA if told by healthcare provider or subject to a federal, state, or local quarantine order); FMLA if COVID is serious health condition • Employee caring for child due to School/Childcare Closure = FFCRA (EPSLA + EFMLEA), Possibly paid sick leave, PTO Employer Liability and COVID-19
  18. 18. © 2020 Lerch, Early & Brewer 18 Retaliation Employer Liability and COVID-19 • Adverse action following request for leave or accommodation
  19. 19. © 2020 Lerch, Early & Brewer 19 Resources Employer Liability and COVID-19 Leave as Accommodation under ADA • EEOC’s What you should know about COVID-19 and…
  20. 20. © 2020 Lerch, Early & Brewer 20 Resources Employer Liability and COVID-19 Families First Coronavirus Response Act • FFCRA Poster • EEOC’s Q&A on FFCRA • Family Medical Leave Act – COVID-19… and the Family Medical Leave Act Questions and Answers • State and Local Paid Leave Laws
  21. 21. © 2020 Lerch, Early & Brewer 21 FLSA and compensation issues in a COVID world Employer Liability and COVID-19 • Leave bank draw down • Leave without pay • Pay during quarantine • Volunteers • Pay rate change for telework • Costs of telework • Hours worked during telework • When does the day start and end?
  22. 22. © 2020 Lerch, Early & Brewer 22 Workers’ Compensation Employer Liability and COVID-19 • Maryland – Occupational disease – Accidental injury • Virginia – Occupational disease – Accidental injury • DC – Occupational disease – Accidental injury
  23. 23. © 2020 Lerch, Early & Brewer Disclaimer: This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here. Unauthorized Recording and Broadcast Notice: No individual or entity – including a presenting author – may record or broadcast any portion of this presentation without prior written consent of Lerch, Early & Brewer, Chtd. Unauthorized recording (audio, video, still photography, etc.) of presentations during sessions, posters, workshops, slide decks, or other presentation materials, without the express written consent of Lerch, Early & Brewer, Chtd. and individual authors is strictly prohibited. 23 Thank you!
  24. 24. © 2020 Lerch, Early & Brewer 24 Employer Liability and COVID-19 About the Presenter Marc Engel is an employment attorney committed to proactively helping for profit and nonprofit employers minimize the risk of employment claims; establish sound and effective employment documents and policies, and resolve local, state, and federal workplace disputes throughout the Washington, DC area. Marc R. Engel T 301-657-0184 F 301-347-1798 mrengel@lerchearly.com Employment Attorney Lerch, Early & Brewer
  25. 25. © 2020 Lerch, Early & Brewer 25 Employer Liability and COVID-19 About the Presenter Employment attorney Julie Reddig helps employers build and maintain productive workplaces by navigating the many federal, state, and local laws protecting employees in the workforce. She counsels management on avoiding and defending against employment claims before administrative agencies and local, state, and federal courts in Maryland and the District of Columbia. Julie A. Reddig T 301-961-6099 F 301-347-1788 jareddig@lerchearly.com Employment & Labor Attorney Lerch, Early & Brewer
  26. 26. © 2020 Lerch, Early & Brewer 26 Employer Liability and COVID-19 About the Presenter Michael Neary is an employment attorney and commercial litigator who works with businesses to prevent and defend against employee claims. He also litigates commercial disputes such as real estate controversies, business fraud, corporate and partnership dissolutions, and commercial contract claims. Michael J. Neary T 301-657-0740 F 301-347-1790 mjneary@lerchearly.com Employment & Litigation Attorney Lerch, Early & Brewer

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