Many of us have spent most of 2020 and 2021 perfecting our distancing techniques. Coping mechanisms became second nature—wearing masks, holding Zoom meetings, and slathering on hand sanitizer. In the wake of widespread vaccination, we are scaling back these Covid-19 coping mechanisms. However, in the excitement to leave the pandemic behind, employers cannot ignore employee fears, desires and rights—and conflicts that are arising.
Litigation associated with the return to work is growing nationwide, raising a wide variety of allegations. Employers should continue to track these developments in an effort to avoid litigation while retaining talented employees in an environment where distancing has resulted in a significant number of people quitting or changing organizations.
Communicate Issues Clearly
First, employers should communicate clearly as to remote work and leave issues. When Covid-19 first hit, a majority of employees moved to remote work arrangements. Where the line between work and home used to be clear, it quickly blurred.
Previously, when an employee took leave, employers knew not to contact them during that time. But, post-Covid, and continuing remote or hybrid work arrangements, employers need to remember that employees should not be contacted or expected to work while on a protected leave.
Although employees who are working from home can be expected to answer work calls and emails, the same is not true while the employee is at home, but on a legally protected leave, such as the Family and Medical Leave Act or an ADA accommodation, or even sick leave under state law.
Avoiding Retaliation Claims
The potential for lawsuits alleging unlawful retaliation regarding alleged employer interference with protected leave or other issues has also increased in the return to work environment. The most common litigation will likely relate to retaliation for reporting unsafe work conditions or requesting and/or using leave. Critically, these types of lawsuits could arise quickly.
Unlike discrimination claims under federal EEO laws, employees may be able to allege retaliation under certain leave laws without exhausting administrative remedies. That means employees can file lawsuits immediately after they feel they have been aggrieved.
To avoid potential retaliation claims, employers should properly manage communications. If possible, appoint specific members of management to handle requests for leave or concerns about unsafe working conditions. The fewer people involved, the less likely that communications will be misconstrued, mishandled, or delayed.
The communications and investigations should also emphasize that retaliation will not be tolerated and employees are free to ask questions and express concerns. Those concerns are often not bases for changing policies, but unless communications are well-managed, even a lawful employer action can result in a retaliation claim.
Disability Discrimination Allegations
Another crop of expected return-to-work lawsuits relates to allegations of discrimination, particularly disability discrimination. For example, if an employee asks for the ability to continue to work from home because they have a condition that puts them at a heightened risk if they contract Covid-19, employers should engage in the interactive process before summarily denying the request.
Indeed, if that employee has been performing their job duties satisfactorily from home for the last year and a half, they may have a strong argument that continuing to work remotely is a reasonable accommodation.
The issue of accommodations also could arise if an employee cannot receive a Covid-19 vaccine because of a medical condition. If the employer mandates the vaccine, and requires the employee to return to work, the employee may have a claim for disability discrimination if the employer does not accommodate his medical condition. In light of these circumstances, employers should be flexible in considering and granting accommodations.
To further mitigate against discrimination lawsuits, employers should ensure that any recall to the office decisions are based on objective and nondiscriminatory standards. Without clear, documented and communicated business reasons for personnel actions, employees will file claims if they are terminated and can establish a claim that their termination was based on his or her protected status.
Finally, employers should be prepared for potential wage-and-hour lawsuits. Again, employers should have documented expectations—which employees acknowledge—to help strengthen their position in the face of a lawsuit.
For example, if employers will continue to allow employees to work remotely, employers should enact remote work policies that clearly delineate procedures for meal and rest breaks, timekeeping and work hours. By instructing employees on how to track their time, and that they are not to answer phone calls or emails while on break, employers can minimize the risk of such claims.
All of these protective approaches do not alter the fact that where employers have employees returning to the workplace, they should ensure that Covid-19-related safety protocols will not lead to wage- and-hour lawsuits.
Specifically, if employers require employees to wait to have their temperatures checked or to complete a health survey at the start of the workday, employers should consider whether that time could be compensable. The most conservative approach to avoid lawsuits is to pay employees for time spent waiting to complete these screenings.
Although widespread vaccination, hybrid work arrangements and other strategies continue to evolve, employers remain vulnerable to employment lawsuits as more employees return to the workplace. While we may no longer need to rely on many of the avoidance techniques that we developed at the start of the Covid-19 pandemic, employers looking to avoid lawsuits do need to continue to deploy their litigation avoidance strategies and consult with their counsel to keep a distance between themselves and employee claims.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jessica Federico is a labor and employment attorney with Ballard Spahr who advises public and private employers alike. She counsels employers on defense of discrimination claims, wage and hour disputes, employee terminations, and restrictive covenants.