As American businesses begin gradually re-opening in the coming weeks and months, there are a number of important factors and challenges to keep in mind. For one, although it has been found that older persons appear more susceptible to COVID-19, employers cannot prioritize older employees for furlough without likely violating federal and/or state discrimination laws regarding age. Employers will also have to adopt an objective standard in determining who to layoff and may run into issues if layoffs adversely impact a disproportionate number of employees in a protected category, such as age or race.
A substantial area of concern for employers as employees return to work may be whistleblower complaints. As there are conflicting reports regarding the spread of coronavirus and how best to protect oneself from the virus, it is likely many employees will file complaints to their supervisors or co-workers if they perceive that others are not following important health guidelines for curtailing the spread of the virus. If said employees are later terminated for unrelated reasons, they may file a suit saying they were discharged for reporting violations of health guidelines. As such, employers should take care to provide careful documentation as to why they are terminating the employment and employees should remain cognizant of said documentation.
Many employees are likely to want to return to work despite being at a higher risk of contracting the virus because of an underlying health condition. It is important for employees and employers alike to remember that an employer may not unilaterally decide to furlough or lay off such an employee without violating numerous discrimination laws. Nonetheless, should an employee identify themself as an individual at a higher risk of contracting the virus and further request an accommodation to allow them to continue working, the employer is required under the Americans with Disabilities Act to make an effort to provide a reasonable accommodation to said employee.
There will of course exist the likelihood that an employee will contract COVID-19 after businesses re-open. However, there is uncertainty on how liability will be determined under these circumstances. The federal government is currently debating whether to provide some form of immunity against COVID-related liability for employers. It is unclear at this time whether such legislation will pass or to what extent immunity may be granted. It is also still unclear at this time whether an employee who contracts COVID-19 will qualify for workers’ compensation. If treated like the flu, it is unlikely to be covered. However, if there is an outbreak, this may constitute adequate grounds to be covered by workers’ compensation.
As things currently stand, there is still much uncertainty for employees as workplaces begin to reopen. While one should stay informed on how employment law will evolve to address these issues, the best advice right now remains to follow health guidelines and do one’s best to protect oneself in addition to others.