COVID-19: Employers Beware of Potential Liabilities

Fear surrounding COVID-19, as well as the virus itself, continues to spread, leading to a fluctuating stock market and discomfort among the business community. Many employers have already taken measures to protect people and operations. But in this fast-evolving situation, it’s crucial to take a balanced approach to ensure that action will not lead to liability claims by employees.

As a starting point, employers should keep themselves informed, relying on established and competent sources, including the World Health Organization, Centers for Disease Control and Prevention, and the State Department. Businesses should also consult with legal counsel before making any decisions related to employment practices, as the facts surrounding the outbreak, the relevant law, and business realities could alter your analysis.

Take a Balanced Approach

Businesses are permitted – and certainly should – implement and enforce policies intended to keep employees, contractors, and customers safe. But any corporate or human resources policy that is adopted amid the current outbreak should ideally address all communicable diseases rather than focus specifically on COVID-19.

Employers should note that even a well-intentioned response could lead to liability claims. Of particular concern are discrimination claims premised on specific groups of employees being targeted because of their race or national origin, or disability discrimination claims by employees who exhibit symptoms of COVID-19. Employers must balance the need to respect Title VII of the Civil Rights Act and the Americans with Disabilities Act with their legal obligation to provide safe workplaces for all employees.

Employers should also keep the following in mind:

  • Employees who refuse to work due to a belief that their health could be in immediate danger could be considered to be engaged in protected activity under the Occupational Safety and Health Act. Employers should avoid subjecting those employees to adverse action.
  • A group of employees who refuse to work because of concerns about the virus could also be considered protected under the National Labor Relations Act. Disciplinary action or termination of these employees could thus lead to an unfair labor practice claim.
  • There are no federal requirements that nonexempt (hourly) employees be paid for time not working — for example, while under an employer-mandated quarantine — nor is there a federal paid leave of absence law. But employers must be cognizant of the myriad state and local laws that bear on these issues. 

As countries and governments continue to take steps to stem the spread of COVID-19, employers should be developing their own mitigation plans. If you haven’t done so already, consider putting together a planning group to develop a response to epidemics and pandemics. Among other risks, this group can analyze potential litigation risks and determine potential responses. Now is also the time to update critical plans related to travel policy, employee wellbeing, and insurance coverage.

Finally, it’s essential that your people remain the prime focus as their health and safety is paramount. Thus, make sure that you are clearly communicating any current or future measures taken to protect employees and help limit the spread of disease.

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Kelly Thoerig

Employment Practices Liability Leader, Marsh