Returning to Work After COVID-19: Beware of These Employment Practices Liability Exposures

Posted by John Cofini on Tue, May 19, 2020 @ 12:36 PM

returning-to-work-after-covid-19Governors in many states are starting to ease their stay-at-home orders. This means that businesses will be returning to work – but they will not be returning to business as usual. The pandemic is still a threat, and employers must beware of associated employment practices liability exposures.

The Risk of Infection and Subsequent Claims

Walmart is being sued for wrongful death by the family of an employee who contracted COVID-19. According to Reuters, the lawsuit alleges that Walmart did not adequately screen or protect workers.

The New York State Nurses Association has filed three lawsuits related to COVID-19. CNN reports that the nurses allege that the hospitals and medical centers being sued aren’t doing enough to protect nurses who are treating COVID-19 patients.

These lawsuits might just be the beginning. As more businesses open up, more infections are likely, possibly even inevitable. Employees (and customers) who get sick could sue their employers. Employers who don’t provide sufficient masks, gloves or hand sanitizer could face claims of negligence.

According to the Las Vegas Review Journal, fear of lawsuits has prompted Nacho Daddy, a Las Vegas restaurant, to have employees sign a waiver that absolves that company of liability if the employees catch COVID-19. However, an attorney who spoke to the newspaper said the waiver probably wouldn’t be enforceable.

When employees get sick, subsequent claims may fall under workers’ compensation laws. Many states are actually making it easier for workers to file for workers’ compensation due to COVID-19 by easing requirements to prove that the disease was contracted at work. According to the Insurance Journal, at least nine states have expanded eligibility for workers’ compensation, although some of these rules apply only to healthcare workers and first responders.

Discrimination and Wrongful Termination

Many businesses have had to furlough or lay off employees in response to forced closures and reduced profits. As businesses begin to reopen, they will need to bring some employees back. However, they may not be able to rehire everyone.

According to the National Law Review, this has led to termination and discrimination lawsuits, and more lawsuits will likely be filed in the near future. For example, a New York man is suing his employer because he claims he was one of the first to be laid off in COVID-19 cuts because of his age. Other lawsuits have claimed that employers that had mass layoffs without a 60-day notice failed to comply with the WARN Act.

Claims of retaliation may be another risk. According Fox Business, a Kentucky man is suing Trader Joe’s over claims of wrongful termination. He claims he was fired unfairly after posting concerns about Trader Joe’s handing of coronavirus in a private Facebook group.

We are in an unprecedented situation. Businesses must proceed carefully both to keep their employees safe and to avoid unnecessary litigation.

Tags: employment practices liability, COVID-19, returning to work after COVID-19