Just as many individuals are anxious to get back to bars and restaurants, concerts, theater, and family gatherings, these desires must be tempered by the risks that this behavior presents. In this Employment Issues column, Philip M. Berkowitz and Devjani Mishra write that opening prematurely can constitute an invitation to unwelcome and intrusive government oversight of workplaces, and can result in significant legal liability. Employers may, for the time being, choose to move cautiously before encouraging employees to return to work.
By Philip Berkowitz and Devjani Mishra | November 10, 2020
Nine months after COVID shut down workplaces around the nation, many businesses are anxious to get back to work and reopen as quickly as possible. Employees, too, may be eager to return to work. They miss interacting with colleagues, the give-and-take and exchange of ideas, and getting out of the house, away from family and kids, and the focus that a workplace provides.
All this is well and good, and an understandable goal. However, just as many individuals are anxious to get back to bars and restaurants, concerts, theatre, and family gatherings, these desires must be tempered by the risks that this behavior presents.
Opening prematurely can constitute an invitation to unwelcome and intrusive government oversight of workplaces, and can result in significant legal liability.
In particular, with the election of Joe Biden to the Presidency and his expected plans for dealing with the pandemic, the coming flu season, and the increase in COVID-19 infections in many states, employers may, for the time being, choose to move cautiously before encouraging employees to return to work.
Lawsuits Are Increasing
According to a report issued by Littler on Nov. 6, 2020, there have been 1,113 lawsuits (including 114 class actions) filed since March 12 against employers due to alleged labor and employment violations related to the coronavirus. California is leading the way with 237 cases filed, with New Jersey (124), Florida (108), and New York (82) following behind.
Complaints have (in descending order) included claims of retaliation, workplace safety, disability discrimination, failure to provide paid or unpaid leave in violation of federal laws, workplace safety/personal protective equipment (PPE) violations, whistleblower claims, failure to pay overtime, harassment, race discrimination and others.
Examples of COVID-19-related allegations against employer defendants include:
- An employee with anxiety disorder sought permission to continue to work from home as an accommodation. Employee claimed that the employer failed to accommodate the employee in violation of anti-discrimination laws.
- Employee claimed that employer’s failure to comply with state-mandated health requirements, including social distancing, violated whistleblower laws.
- Defendants denied employee’s request to work one day from home per week after she returned to work early from maternity leave. After plaintiff later requested medical leave to care for her husband and daughter, the latter of whom suffered a seizure, all her work-from-home privileges were revoked and she was later fired.
- Defendants would not give employee paid leave so she could care for her daughter when schools closed due to the COVID-19 pandemic. Plaintiff was forced to resign.
- Plaintiff, one of very few black women to have worked for defendants, was denied promotions and advancement, and she was fired after requesting accommodations or a medical leave to care for a disabled child during the COVID-19 global pandemic.
In New York, in particular, filing a COVID-19 complaint against an employer is easy. The New York State Department of Labor’s website provides an online link to a COVID-19 Complaint Form (https://forms.ny.gov/s3/Department-of-Labor-COVID-19-Complaint-Form), and announces:
You may file a complaint for any of the following reasons:
- Your employer is not taking proper safety and health precautions
- You have particular concerns because you or a family member are part of a vulnerable population (i.e., underlying health conditions or over 70)
- Your employer has failed to pay you wages owed for hours worked, earned sick pay or paid time off
- Your employer has threatened or fired you for reasons related to COVID-19
- You qualify for COVID-19 paid sick leave and your employer refuses to pay it
- Your employer is forcing you to work when you are sick
Inspectors Descend on Workplaces
Employee complaints often beget inspections from state, local and federal agencies, including the federal Occupational Safety and Health Administration, the New York State Department of Health, and others.
Moreover, employers in New York must notify the New York State Department of Health of every employee diagnosis of COVID-19 in their workplace. Inspectors are quite likely to appear, or at least request information, in the event of an outbreak of more than one case.
The New York City Test and Trace Corp is deploying thousands of contact tracers to investigate cases of COVID-19, and identify and monitor close contacts of those cases. They will attempt to interview all people diagnosed with COVID-19 and to identify close contacts who were potentially exposed.
Once in the crosshairs of these agencies, it is hard to get out. The agency will want to be sure that the employer is social distancing, requiring employees to wear masks, and carrying out appropriate health screenings, and that the employer has established written safety guidelines specific to the current pandemic. Inspectors will come on-site, hand out their business cards and encourage employees to contact them, and interview employees to ascertain whether the employer has implemented all required safety measures. They will not necessarily include employer representatives in these interviews. They will review employer policies and determine the measures the employer is taking to enforce them.
Employers do not want to be playing defense, and must be well prepared to respond within a short timeframe. Apart from the negative optics among employees and customers, the process can be quite stressful.
Employers Must Encourage Working From Home
The New York State Department of Health Interim Guidance for Office-Based Work during the COVID-19 Public Health Emergency (Guidance) (updated as of July 17, 2020) imposes numerous obligations on employers. Reopened businesses must affirm their adherence to these reopening guidelines on a state- issued form, available at https://forms.ny.gov/s3/ny-forward-affirmation (https://forms.ny.gov/s3/ny- forward-affirmation).
Similar guidelines have been established for employers in specific industries as part of the New York Forward reopening framework. Employers are required to affirm that they have reviewed and will comply with the applicable guidelines at the New York Forward website (forward.ny.gov (forward.ny.gov)).
Repeatedly, the Guidance states the employers must encourage work-from-home. The Guidance provides that employers “should create polices which encourage employees to work from home when feasible.” Thus, for example, good faith efforts to encourage productivity in office work, such as awarding bonuses to employees who are willing to return to work, are inadvisable.
The Guidance also provides that employers must “implement best practices for employees to successfully work from home,” such as conducting surveys “to determine what practices are working and what can be improved; providing tips and tricks for employees to enhance remote work sustainability; allowing for employees to set morning and evening boundaries and taking regular breaks throughout the day; and informing employees of the resources they have readily available.
Employers Must Discourage Interpersonal Contact
While employees may yearn for interpersonal contact, the Guidance states the employers “must take measures to reduce interpersonal contact and congregation, through methods such as adjusting workplace hours; reducing in-office workforce to accommodate social distancing guidelines; shifting design …; and/or avoiding multiple teams working in one area by staggering scheduled tasks and using signs to indicate occupied areas.”
To the extent that individuals must come to the office, the Guidance makes clear that social distancing is the prevailing goal. While employees may miss their time chatting around the water coolers, the Guidance states, “employees should remain near their workstations as often as possible.”
The Guidance provides that employers must develop a written Safety Plan, which must be maintained on the businesses’ premises and be made available to the New York Department of Health upon demand. This Safety plan must be posted on the premises and must provide the following rules, among many others:
- Physical distancing:
- total number of occupants is limited to no more than 50% of the maximum occupancy at any given time for a particular area, and employees must be separated by at least six feet of distance at all times.
- If individuals come within six feet of another person, they must wear acceptable face coverings.
- New York state requires that employers provide employees with face coverings or take steps to ensure that employees have suitable face coverings.
- Shared workstations must be cleaned and disinfected between users.
- Employers must put in place measures to reduce bi-directional foot traffic using tape or signs with arrows in narrow aisles, hallways, or spaces, and post signage and distance markers denoting spaces of six feet in all commonly used areas.
- Employers should “mark six feet distance circles around workstations and other common stationary work areas.
- Employers must post signs throughout the office, to remind individuals, among other things, to follow hand hygiene and cleaning and disinfection guidelines, and follow appropriate respiratory hygiene and cough etiquette.
Employers also should “encourage the use of video or teleconferencing for their employee meetings whenever possible to reduce the density of in-person gatherings, per CDC guidance.” They should mark tables in meeting rooms with appropriate distance markers, and “encourage social distancing by limiting occupancy or closing non-essential amenities and communal areas that do not allow for social distancing protocols.”
The Guidance imposes significant obligations on the employer in the event of an infection. Employers must require employees to immediately inform them if they begin to experience symptoms, including during or outside of work hours. An individual who exhibits COVID-19 symptoms must not be allowed to enter the office and/or must be sent home with instructions to contact a health care provider for assessment and testing. If someone is suspected or confirmed to have COVID-19, the employer must close off areas used by the person, shut down and clean and disinfect shared building spaces used by the person, and take other affirmative steps to disinfect the area.
Employers must immediately notify the state and local health department if employee test results are positive for COVID-19. The employer should maintain a log of every person, including employees and visitors, who may have close or proximate contact with other individuals at the worksite or area, which should contain contact information, such that all contacts may be identified, traced and notified.
Employers must notify the state and local health department where the building is located of all individuals who entered the site dating back 48 hours before the employee or visitor first experienced COVID-19 symptoms or tested positive, whichever is earlier. Confidentiality must be maintained as required by federal and state law and regulations.
While there are no specific rules regarding notification to third parties (such as clients or visitors) who may have come into close contact with a COVID-19 positive employee, employers must develop a protocol for addressing this issue, or face the prospect that the third party will be notified by the public health department, which may be detrimental to the business relationship.
Employers must ensure that in the case of an employee showing symptoms while in the workplace, the building managers (assuming the employer does not manage the building itself) are immediately notified with information on where the individual has been throughout the building and notify building management if the symptomatic employee tests positive. Property management companies are subject to their own reopening related safety guidance and are responsible for monitoring tenants’ COVID-19 safety compliance.
The Guidance encourages employers to “phase-in reopening activities so as to allow for operational issues to be resolved before production or work activities return to normal levels.” Employers must implement mandatory daily health screening practices of employees and visitors. Responses to this screening must be reviewed daily and that review must be documented. Screening stations must be spaced to accommodate proper social distancing and to allow for individuals’ privacy.
Potential Discrimination Claims
Employers have an obligation under New York City and New York State Human Rights Laws, and under the Americans With Disabilities Act, to provide reasonable accommodations for employees with “disabilities” (which includes medical conditions). The EEOC has stated that an employee may seek accommodation based on an underlying condition that puts that employee at higher risk of COVID-19 complications.
Both remote work and leave time are forms of reasonable accommodation. These discrimination laws do not require that leave with pay be provided, but they may require an employer to allow more unpaid leave time than is provided under the employer’s policy (and more than is required under the Family and Medical Leave Act), if that can be done without causing the employer undue hardship and other accommodations are unavailable.
Employers should not disclose the reason a worker is being sent home to other employees, to preserve medical privacy under federal and state law and to avoid claims of harassment or discrimination. The NYC Health Department recommends that employers “tell coworkers that it is a violation of the NYC Human Rights Law to harass or discriminate against an employee because of a medical condition, such as COVID- 19.”
Treating employees differently because of a COVID-19 diagnosis or an elevated susceptibility to COVID-19 can lead to a lawsuit. If employees who fall into certain “at-risk categories”—such as those with a history of medical conditions, or with family members who are sick or disabled or have a history of disability, or older employees—are penalized in any way, such as by being denied a bonus or pay increase or promotion, they may bring a discrimination lawsuit, and seek compensatory and punitive damages.
Certainly, employers can and should put in place reasonable plans for returning employees to work. These plans must be measured, and put in place in stages, with appropriate diligence and attention paid to the Guidance and employment laws.
But while employers have good reasons for wanting their employees return to their physical workspaces, now is the time for caution.
Encouraging employees to return to work prematurely, or sending a message to managers that they will be rewarded if their employees return, may put stress on employees, who feel that if they fail to meet these demands, they will be at risk of discipline or lost opportunities. Vulnerable employees in at-risk categories may be particularly stressed by demands or expectation of this nature.
These messages can cause employees to take advantage of the numerous avenues that government enforcement agencies are providing to file complaints or otherwise go to court and file any number of legal claims. Moreover, they may be interpreted negatively by public health agencies evaluating the employer’s compliance with safety requirements during an ongoing pandemic.
Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices. Devjani Mishra is a shareholder in Littler’s NYC office.
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Reprinted with permission from the November 10, 2020 edition of the New York Law Journal©
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