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How Can Employers Protect Themselves Against COVID-19 Litigation?

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Now that Governor Larry Hogan has announced Stage One of Maryland's plan to re-open, employers can expect an increase in lawsuits from employees-particularly whistleblower and retaliation claims. The reason for this is two-fold: (1) some employees will be hesitant to come back to work and may put up a fight when asked to return; (2) with layoffs and unemployment at an all-time high since the Great Depression, some employees could threaten litigation to hold onto their jobs. This is especially true in highly-regulated industries like healthcare and consumer goods, in which whistleblower complaints are more common.

Claims that employees might file include:

  • Occupational Safety and Health Act (OSHA): Although employees cannot bring a private action against their employer for perceived safety issues, the Secretary of Labor can sue an employer on the employee's behalf. As we discussed in previous blogs, there are steps employers should take to ensure that their workplaces are compliant with safety guidelines. Employers should carefully document all safety measures that they implement.
  • National Labor Relations Act (NLRA): Many employees will protest for better protections and working conditions. Such activity is potentially protected under the NLRA, regardless of whether the employees are unionized. Employers should be careful before they discipline employees who protest their working conditions, as such discipline may violate the NLRA.
  • Families First Coronavirus Response Act (FFCRA): The FFCRA requires employers with fewer than 500 employees to provide paid emergency sick and family leave to their employees. Employers cannot retaliate against employees if they request leave under the FFCRA, and employers who fail to honor their obligations under the FFCRA may be liable for backpay, liquidated damages, and attorney's fees. Employers must clearly display a poster (or send an email to employees working from home) that summarizes employees' rights under the FFCRA.
  • Americans with Disabilities Act (ADA): Employers should expect requests for reasonable accommodations from employees who are high-risk for COVID-19, without which they might be unable to return to work. While the EEOC has not formally stated that COVID-19 is a "disability" under the ADA, employers still must engage in an interactive process with employees who request accommodations. Although employers should be flexible and consider reasonable accommodations such as telework, they should clearly communicate to employees that they must still meet performance standards.
  • Fair Labor Standards Act (FLSA): COVID-19 has dramatically changed the number of hours employees work; therefore, employers might see an increase in FLSA claims. Before cutting an employee's pay, employers should consult with an attorney to ensure FLSA compliance.
  • Maryland's Health Care Worker Whistleblower Protection Act: This law protects licensed or board-certified healthcare workers who speak out against employer violations of laws, rules, or regulations that pose a risk to public health or safety.

Employers must be aware of the potential claims that could be filed against them, make sure they are compliant with all applicable laws, and properly respond to all employee complaints. Employers should re-train supervisors on their reporting mechanisms to ensure that all complaints are carefully documented and referred to the proper parties. Additionally, employers should proactively fix the problems, and they should provide employees with written notification of whatever steps they took to correct the problems. Finally, it goes without saying that if an employee files a complaint, they should not be fired in retaliation. If an employer plans to terminate an employee with a history of complaints, they should first discuss the issue with an employment attorney.

If you have any questions related to the COVID-19, or any other aspect of employment law, contact Thatcher Law Firm at 301-441-1400. www.ThatcherLaw.com. Email me at [email protected].

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