Christine Cunning

We can all agree that COVID-19 has caused a massive upheaval of the workplace. Banking, an essential business, moved quickly to remain open for business while closing down branches. The shift to online banking, drive–up windows and working from home is now remaining in place even as branches and offices begin to open. 

In the wake of all of this change, managers have been scrambling to draft and implement policies and procedures addressing a wide variety of issues including remote work, layoffs, furloughs, pay cuts, workplace conditions and more that can potentially lead to an increased risk of exposure to employment–related claims. 

The first issue facing management is workplace health and safety. These safety violation claims typically allege that an unsafe workplace has caused sickness and/or death due to COVID-19, or that an employer failed to take appropriate measures to reduce COVID-19 exposure and spread within the workplace. This might include failure to provide hand washing stations, sanitizers, masks or adequate protective gear on site. Other claims have alleged that employees have been unable to practice social distancing due to the nature of the job. 

The new Families First Coronavirus Response Act require employers with 500 or fewer employees to give employees expanded paid family and medical leave and emergency paid sick leave. This means that an employee who is wrongfully denied expanded leave or not paid during the leave will have a cause of action to recover damages such as lost wages, salary, and benefits or actual monetary losses resulting from the denial of leave such as the costs of child care, with interest. 

Altering work arrangements and compensation structure has been necessary to keep many businesses alive, but those changes may inadvertently change the classification status of workers. Such classification issues may lead directly to a Fair Labor Standards Act claim. 

Use Objective Means 

Employers must be careful to use objective means when deciding which employees to lay off or furlough to avoid discrimination claims. Management must retain records of the criteria used.  Employees might also file a claim based on an employer’s failure to reasonably accommodate employees with a bona fide disability related to COVID-19. Such claims may even be based on a denial of a request to allow an employee to work from home. Extensive documentation of the reasoning behind employment decisions can be the difference between a successful defense and a costly judgment. 

Wrongful termination claims can arise out of a number of COVID-19 related issues. An employee claiming that they were terminated for complaining about the lack of personal protective equipment or another claiming that they were terminated for lodging a complaint about co-workers with COVID-19 symptoms returning to work. Managers need to proceed cautiously upon receiving employee complaints. They must maintain meticulous records of complaints, the investigation process and the ultimate reasoning behind the termination. 

As a precaution against the spread of COVID-19, employers are allowed to measure employee’s body temperature but this also exposes the employer to an array of privacy related issues. The Americans with Disabilities Act requires that all medical information about an employee be stored separately from the employee’s personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that they have the disease or suspect they have the disease or an employer’s notes about questioning an employee about symptoms. 

It is important to develop a return to work plan that incorporates federal and local safety guidelines on personal protective equipment, workspace hygiene, social distancing measures and other precautions.. These new policies and procedures should be reviewed by legal counsel to ensure compliance. Managers should continue to monitor the Center for Disease Control, the Occupational Safety and Health Administration and individual state health authorities’ recommendations as well as legislative enactments to comply with the most recent guidance.  

Finally, clear communication with employees, managers and supervisors is more vital now than ever to avoid potential employment related litigation and maintain a healthy workplace. 

Christine Cunning is a principal with Worcester-based independent brokerage Sullivan Garrity & Donnelly Insurance Agency Inc.