David I. Rosen, Grace A. Byrd, Jill Turner Lever
Employment and Labor
May 19, 2020
As New York and
New Jersey take steps to relax shelter-in-place executive orders, allowing more
businesses to reopen and recall employees to work, companies face challenges to
comply with the myriad of constantly evolving executive orders as well as
guidance documents issued by the Centers for Disease Control (“CDC”) and the
Occupational Safety and Health Administration (“OSHA”) to resume work and to
aspect of the pandemic has increased potential employment litigation exposure
from a variety of sources, including existing statutes as well as new federal,
state and local laws. These risks are
exacerbated by the fact that so many employees in the Tri-State area are, and
will remain, unemployed, coupled by what will inevitably be an active
plaintiffs’ bar ready to file claims.
Claims may be triggered if employees resist calls to return to the
workplace based on fears of COVID-19 exposure and suffer adverse consequences
when they do not return, are exposed to the virus while they are at work, or
are denied the right to continue working remotely or other requested
The areas employers
are likely to see an uptick in litigation include:
- Employment discrimination claims arising under
federal, state and local human rights laws, based on discriminatory rehire and
recall decisions, a failure to reasonably accommodate employees with bona fide
disabilities related to COVID-19, and co-worker harassment based on pandemic-related
- Safety violation claims arising under the Occupational
Safety and Health Act from alleged employer failures to take appropriate
measures to reduce COVID-19 exposure and spread within the workplace.
- Negligence claims based on personal injuries
allegedly suffered by employees due to workplace hazards, which may or may not
be pre-empted by Worker’s Compensation statutes.
- Claims based on inadequate or non-existent written
notices when employees were laid off or furloughed, arising under the federal
WARN Act as well as under “mini-WARN Act” statutes in those states that have
them (such as New York and New Jersey).
- Wage and hour claims arising under the Fair
Labor Standards Act and applicable state laws related to salary and hours
reductions that were instituted when companies sought to reduce operating costs
due to declining revenue and/or based on a failure to properly record hours
worked while working remotely.
- Leave of absence claims, where employee requests
for additional leave are denied, or where employees have not received COVID-related
paid leave benefits while remaining actively employed - under the federal Families
First Coronavirus Relief Act, applicable state governor executive orders, and
- Whistleblower retaliation claims arising under
existing state laws if employees who raise internal health or safety concerns
suffer adverse action.
- Unfair labor practice charges arising under the
National Labor Relations Act if employees engage in a variety of “protected
concerted activities” related to COVID-19 health and safety concerns.
In order to
minimize the risk of claims, it is advisable for employers to take proactive
steps, such as by:
- Developing a return-to-work plan that
incorporates executive orders, CDC, OSHA and local health authority workplace
safety guidance on personal protective equipment (“PPE”), workspace hygiene,
social distancing measures and, where applicable, wearing masks.
- Implementing a reasonable accommodation process
to evaluate requests for temporary job restructuring, position transfers,
remote work, leave or modified work schedules.
- Handling recall, rehire and job offers in a
manner that limits the risk of discrimination claims.
- Preserving the confidentiality of all
medically-related information provided by employees in response to the
- Investigating and responding to internal
employee complaints and expressions of concern regarding any workplace safety
or health issue raised by employees reluctant to return to work, handle certain
tasks, or attend certain meetings.
- Training managers and supervisors on minimizing
workplace injury claims based on COVID-19 conditions.
- Reviewing reductions-in-force for compliance,
including analyzing WARN Act issues, drafting WARN Act notices or evaluating the
sufficiency of such notices.
- Determining whether any adjustments made to employee
salaries for work performed during the past months compromised their exempt
from overtime status, how this can be repaired, and what, if any, notices must
be sent to affected employees when doing so.
- Evaluating requests for leaves of absence and
determining what, if any, leave entitlements exist under federal, state and/or
local laws, which must be reviewed on a case-by-case basis and properly
- Analyzing whether employees engaged in protected
concerted activities related to COVID-19-related safety and health concerns
before taking adverse action.
Attorneys in our Employment Law
Practice Group are available to provide advice and guidance on these and other
proactive measures, and to defend any COVID-19 related administrative charges
or court complaints filed by current or former employees.
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.