By A. Kevin Troutman, Partner, Fisher Phillips
As the global pandemic continues, a strong new wave of COVID-19 cases has emerged, this time accompanied by a groundswell of employment litigation, as hungry plaintiffs’ lawyers line up a host of claims that are directly or indirectly related to the pandemic. By the end of June, well over 250 such lawsuits had been filed nationwide. California, Florida, New and New Jersey had seen the most cases, but Texas is among the second tier of states that are seeing such activity. (Source: Fisher Phillips COVID-19 Employment Litigation Tracker.) Some such claims are easier to predict than others. One thing is certain, however: Hospitals, physician practices and other providers can take effective steps to flatten the curve of costs and disruptions that are likely to result from the impending legal onslaught.
Many COVID-related employment claims have been tied to the Families First Coronavirus Response Act (FFCRA). Effective April 1, 2020, the FFCRA temporarily established Emergency Paid Sick Leave (EPSL) benefits for qualifying employees, plus a new reason for leave under the Family and Medical Leave Act (FMLA) when an employee is unable to work or telework due to the need to care for a child whose school or care provider is unavailable due to coronavirus. The new emergency FMLA provision is applicable to many employers who had never before been required to grant traditional FMLA leave. Traditional FMLA of course requires leave for eligible employees with a serious health condition or those who are caring for a close family member with a serious health condition. Since coronavirus can obviously be a serious health condition, employers are likely to encounter scenarios in which plaintiffs assert claims of illegal denial or interference with traditional FMLA leave rights. Lawyers are also filing retaliation claims on behalf of employees who have sought or taken either EPSL or either type of FMLA leave.
Besides claims based upon the FFCRA and FMLA, plaintiffs have filed lawsuits alleging that their employers’ negligence caused them to contract coronavirus at work. These lawsuits face significant hurdles, first because it may be difficult to prove where the employee was exposed to the virus. Simply by virtue of their work setting, however, healthcare employees will tend to have an easier path toward establishing this. Claimants must also overcome the “exclusive remedy” aspect of workers’ compensation (WC) coverage. In Texas, the only way around the exclusive remedy under WC insurance is to prove that the employer acted intentionally or was grossly negligent. Plaintiffs are attempting to establish gross negligence by arguing that employees were forced to work without adequate safeguards. Employers will of course defend such allegations by pointing to their detailed workplace safety policies and practices.
WC non-subscribers, who are not covered by traditional insurance, should review their plan documents and ensure that they are following relevant guidelines from the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA). Failure to fulfill these guidelines may expose employers to both civil and regulatory liability.
Employers must also be cautious to avoid even the appearance of retaliation against any employee who makes complaints or raises questions about workplace safety, a purported shortage of supplies or personal protective equipment (PPE) or noncompliance with any regulatory requirement. Retaliation and whistleblower claims appear especially likely to increase as more employees and law firms return to work. OSHA is also focusing considerable attention upon workplace safety in healthcare settings.
Another hot spot for COVID-related litigation will undoubtedly be state and federal laws prohibiting discrimination based upon an employee’s disability, either real or perceived, and in some cases requiring reasonable accommodation of an employee’s condition. The Americans with Disabilities Act (ADA) provides the framework for most such claims, which can arise in a variety of ways. Critically, ADA compliance requires an individualized evaluation of each situation, as opposed to the application of rigid bright line rules.
Thus, even though coronavirus itself may not necessarily rise to the level of disability on its own, an employee’s underlying condition may constitute a disability that requires an accommodation such as teleworking or a modified schedule. At the same time, an employer cannot unilaterally exclude an employee from the workplace, even if it believes that the employee’s condition makes him particularly susceptible to becoming more seriously ill as a result of the virus. Instead, each situation requires interactive communication with the employee and an assessment of the applicable facts before reaching conclusions or taking action. Generally, the employee must initiate this communication.
As healthcare employers conduct employee screenings, such as temperature and symptom checks, the ADA and other laws require them to carefully safeguard the confidentiality of all employee health information they obtain. They must also be thoughtful about what information they seek in the first place. For example, while the Equal Employment Opportunity Commission (EEOC) expressly permits virus testing during pandemic conditions, it has warned employers that antibody test results may not be used to decide whether an employee may return to the workplace.
Lastly, layoffs and furloughs are another category of claims for employers to keep an eye on. These situations can and do generate claims of intentional discrimination or disparate impact upon protected groups; retaliation; and/or claims of failure to comply with requirements of the Worker Adjustment and Retraining Notification (WARN) Act. Wage and Hour claims are also appearing, alleging that employees were improperly paid while working remotely or that exempt employees did not receive their required weekly salaries. Even as re-opening efforts continue, these and other kinds of lawsuits are adding up across the country.
How can healthcare employer’s safeguard themselves against this building wave of litigation? The answer does not lie in adopting a “new normal.” Instead, success will require refocusing on existing priorities. Specifically, employers can avoid considerable pain from litigation and “flatten the curve” if they:
- Continue to make workplace safety and OSHA compliance your top priority. Especially focus on supply chain integrity, including the availability of masks, gowns, gloves and other PPE; keep recognizing and rewarding hardworking employees, welcoming their input regarding safety topics and encourage them to help recruit more team members; and carefully follow guidance from Health Departments, OSHA and the Centers for Disease Control (CDC), all of which tends to dovetail.
- Keep training and informing employees about what you are doing to protect and support them. There is no better way to rebuild employee confidence and loyalty than keeping them informed and engaged in what you are doing, especially regarding workplace safety.
- Carefully evaluate major employment decisions, especially furloughs, layoffs or other terminations before implementation. Avoid knee-jerk decisions. Especially if groups of employees are involved, evaluate and test decisions before implementing them. Ensure there has been no inadvertent adverse impact upon any race, gender or age group. Confirm the pertinent facts before disciplinary terminations. Confer with counsel where necessary and anticipate potential problems.
- Remain aware of the potential for claims of retaliation, whistleblowing or violations of the FFCRA, the ADA or FMLA. This will become a hotbed of COVID-related litigation. Assess the facts of these tricky scenarios as described above, to ensure consistent and accurate administration of applicable policies. Objectively consider how the contemplated decision would look to a third party. Do not overlook potential WARN Act obligations.
- Pay special attention to employee compensation issues. Between the FFCRA, the CAREs Act and federal wage and hour laws, these issues can be complicated and particularly susceptible to collective actions by plaintiffs’ lawyers. Take time to ensure that time-recording, pay and leave policies are up-to-date and applied consistently.
As these tumultuous times continue, healthcare employers will continue to face big new challenges. They can, however, avoid considerable headaches and help rebuild employee trust and confidence by carefully following these five guideposts.