Tips for Reducing Employer Liability During the COVID-19 Pandemic
By: Talesha Saint-Marc, Hilary Holmes Rheaume, Shiloh Theberge and William Wahrer
As state economies start to re-open, many employers are seeking information about how to reduce potential liability as they navigate the ever-changing legal landscape of applicable federal and state laws. These laws include the new leave laws under the Families First Coronavirus Response Act (“FFCRA”), the Americans with Disabilities Act (the “ADA”), and the Occupational Safety and Health Act (“OSHA”), as well as New Hampshire’s and ME’s Universal Guidelines applicable to all businesses and industry-specific guidance. Although the interplay among these various laws can be complicated, we have identified five practical tips that every employer should follow as it considers re-opening.
Understand the Applicable Leave Laws
At this point, you have likely heard about the FFCRA. Under the FFCRA, an employer with fewer than 500 employees must provide paid sick leave and expanded family medical leave to eligible employees who seek leave for certain qualifying reasons related to COVID-19. Although there is an exemption for small businesses and healthcare providers, we do not recommend electing these exemptions without consulting legal counsel and exercising due diligence to ensure that you qualify. As you re-open, we recommend familiarizing yourself with the leave options afforded under the FFCRA to avoid future enforcement action by the Department of Labor (the “DOL”). You can find more information here. We also recommend sending out the FFCRA poster issued by the DOL to all employees and making sure the poster is posted in the workplace upon re-opening. Because the FFCRA remains in effect through December 31, 2020, eligible employees will be entitled to the leave afforded by the FFCRA through the end of the year.
Although the leave provided for under the FFCRA has received a great deal of attention during the COVID-19 pandemic, it is important to remember that the FFCRA is not the only leave law available to employees. Eligible employees still may be entitled to leave under the Family Medical Leave Act (the “FMLA”) and/or the ADA as well as applicable state laws.
Follow Federal, State and Local Re-opening Guidelines
Before you re-open, you should ensure that you are able to comply with all of the federal, state and local re-opening guidelines that are applicable to your business. The overall intent of the guidelines is to balance the need to re-open with the need to reduce the spread of COVID-19. In the event you receive a complaint or claim that an individual contracted COVID-19 at your business, you will want to be able to demonstrate that you followed the guidelines issued by federal, state and local agencies. These guidelines include, but are not limited to the guidelines issued by OSHA, the State of New Hampshire and State of ME Universal Guidelines and industry-specific guidelines. At this point, the State of New Hampshire has issued industry-specific guidelines for:
- Private and public campgrounds
- State parks
- Certain health care services
- Retail stores
- Drive-in movie theaters
- Public and private golf courses
- Barber shops and hair salons
- Dental offices
- Equestrian facilities
- Child care facilities
Similarly, at this time, ME has issued a general checklist to guide all businesses on how to operate safely and prevent the spread of COVID-19, as well as industry-specific guidelines for:
- Drive-in theaters
- Health Care
- Golf Courses and Disc Golf Courses
- Barber Shops and Salons
- Dog Grooming
- Auto Dealerships
- Car Washes
- Nail Technicians
- Tanning Salons
- Campgrounds and RV Parks
- Camps and Summer Recreation
The OSHA General Duty Clause requires employers to protect their employees against “recognized hazards” to safety or health that may cause serious injury or death. According to OSHA, the majority of employee complaints during the initial months of the COVID-19 pandemic related to personal protective equipment (“PPE”) and employee training on appropriate operational standards during a pandemic. OSHA has issued guidance for companies that intend to either continue operating or re-open during the COVID-19 pandemic. The guidance explains the standards that should be used to protect employees in certain jobs that are classified as either (1) low risk exposure to COVID-19, (2) medium risk exposure to COVID-19, or (3) high/very high risk exposure to COVID-19. We recommend becoming familiar with the guidance issued by OSHA before you re-open to ensure that you can comply with the OSHA standards applicable to each position in your business.
Avoid Wage and Hour Claims
Depending on the nature of your business, the COVID-19 pandemic may be causing your revenue to fluctuate significantly. As a result, you might have been forced to either decrease or increase your workforce at an unprecedented rate. Unfortunately, this could lead to a increase in wage claims. However, there are several ways you can reduce potential liability for a wage claim. For example, under New Hampshire law, all laid off employees should have received their final paycheck within 72 hours. Further, the final paycheck should include all wages owed, such as commissions and, if applicable, accrued, but unused paid time off. Similarly, under ME law, all laid off employees should be paid in full by the employee’s next established payday. Also, in the event you furloughed certain employees, remember that you cannot ask a furloughed employee to perform any work without providing compensation. Finally, employers who maintain a workforce during the COVID-19 pandemic should ensure that they continue to follow all applicable overtime and minimum wage requirements.
Do Not Discriminate
As you consider recalling furloughed employees or hiring new employees, you must comply with the state and federal anti-discrimination laws, including the laws that protect at-risk applicants and employees. For example, you should not hire “younger” employees based on the belief that such employees are not within the “at-risk” group for COVID-19. This practice could lead to a future discrimination claim against the business. You also should become familiar with the new guidance issued by the Equal Employment Opportunity Commission (the “EEOC”) clarifying employers’ obligations to accommodate individuals who are at high risk for severe illness from COVID-19. For example, an employer who is considering excluding an employee from the workplace on the basis that the employee is at-risk for COVID-19 must apply the “direct-threat standard,” which requires the employer to establish that the employee poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Due to the complexities surrounding the ADA and the corresponding state laws, we recommend seeking the advice of counsel if you receive an accommodation request relating to COVID-19.
Do Not Retaliate
We expect an increase in retaliation, whistleblower, and wrongful termination claims brought by employees who allege that they were disciplined or discharged for complaining about health or safety concerns relating to COVID-19. To reduce liability for such claims, we recommend ensuring that your business enforces and emphasizes its anti-retaliation policies. Further, you should encourage employees to report any health and safety concerns and provide multiple avenues to do so. In the event you receive an employee concern related to health and safety at the workplace, you should document the complaint, any action taken to resolve the complaint, and never discipline or terminate an employee for relaying these concerns.
The COVID-19 crisis is rapidly evolving and requiring businesses to adapt quickly to legal, regulatory, economic, and community impacts. Our labor and employment team is monitoring these developments in real time and we’re here to support and assist you as needed. Please do not hesitate to reach out if we can be helpful to you.
To learn more visit our Coronavirus Legal Response Team webpage.