Many of us have spent most of 2020 and 2021 perfecting our distancing techniques. Coping mechanisms have become second nature – wearing masks, holding zoom meetings, and spraying hand sanitizer. In the wake of widespread vaccination, we are scaling back these Covid-19 coping mechanisms. However, in the excitement of leaving the pandemic behind, employers cannot ignore the fears, wants, and rights of employees – and conflicts that arise.
Return to work litigation is increasing across the country and raising a wide variety of allegations. Employers should continue to monitor these developments to avoid litigation while keeping talented employees in an environment where the distancing has resulted in significant numbers of people leaving or changing companies.
Communicate problems clearly
First, employers should communicate clearly on remote working and vacation matters. When Covid-19 first appeared, the majority of employees switched to remote work arrangements. Where the line between work and home used to be clear, it quickly blurred.
Previously, when an employee took vacation, employers knew not to contact them during that time. But under Covid and continued remote or hybrid working arrangements, employers need to keep in mind that workers should not be contacted or expected to work while on sheltered leave.
Although employees who work from home can be expected to answer business calls and e-mails, this does not apply when the employee is at home but rather on a legally protected vacation, such as the family and Sick leave law or an ADA accommodation, or even sick leave according to state law.
Avoidance of retaliation claims
The potential for lawsuits for alleged unlawful retaliation for alleged employer interference with sheltered leave or other issues has also increased with return to work. The most common legal disputes likely relate to retaliation for reporting unsafe working conditions or requesting and / or taking leave. The bottom line is that these types of lawsuits can arise quickly.
In contrast to discrimination claims under federal EBO laws, employees may be able to seek retaliation under certain vacation laws without exhausting administrative remedies. That means employees can file a lawsuit immediately if they feel hurt.
To avoid potential retaliation, employers should properly manage communications. If possible, appoint specific senior executives to handle vacation requests or concerns about unsafe working conditions. The fewer people involved, the less likely the communication will be misinterpreted, mishandled, or delayed.
The notices and investigations should also emphasize that retaliation will not be tolerated and that employees are free to ask questions and raise concerns. These concerns are often not a basis for policy change, but if communications are not managed well, even lawful action by the employer can result in retaliation.
Allegations of discrimination against people with disabilities
Another set of expected return to work complaints relates to allegations of discrimination, in particular discrimination on the basis of disability. For example, if an employee asks to continue working from home because they have a condition that puts them at increased risk if they contract Covid-19, employers should join the interactive process before submitting the request summarily refuses.
If that employee has done their job satisfactorily from home for the past year and a half, they may have a strong argument that continuing to work remotely is a reasonable provision.
The problem of accommodation could also arise if an employee cannot receive a Covid-19 vaccine due to illness. If the employer prescribes the vaccine and asks the worker to return to work, the worker may be entitled to disability discrimination if the employer does not do justice to his or her health. Given these circumstances, employers should be flexible in examining and granting accommodation.
To further mitigate discrimination claims, employers should ensure that any recall of official decisions is based on objective and non-discriminatory standards. Without clear, documented and communicated business reasons for personnel action, employees will assert claims in the event of termination and can assert that their termination was due to their protection status.
Wage and working time lawsuits
Finally, employers should be prepared for possible wage and working time lawsuits. Again, employers should have documented expectations – which their employees recognize – to strengthen their position in the face of litigation.
For example, if employers continue to allow their employees to work remotely, employers should have remote work policies in place that clearly set out procedures for meal and rest breaks, time recording, and working hours. Employers can minimize the risk of such claims by instructing employees to keep track of their time and not to answer phone calls or emails during breaks.
All of these protection approaches do not change the fact that employers who allow workers to return to work should ensure that Covid-19-related safety protocols do not lead to wage and working time lawsuits.
In particular, if employers require employees to wait at the beginning of the working day for their temperature to be taken or for a health survey to be completed, employers should consider whether this time can be compensated. The most conservative approach to avoiding lawsuits is to pay employees the time to wait for these reviews to be performed.
Although widespread vaccinations, hybrid work arrangements, and other strategies continue to evolve, employers remain vulnerable to labor lawsuits as more workers return to their jobs. While we may no longer have to rely on many of the avoidance techniques we developed at the start of the Covid-19 pandemic, employers who want to avoid lawsuits must continue to use their litigation avoidance strategies and consult with their attorney to a distance between yourself and employee claims.
This column does not necessarily represent the opinion of the Bureau of National Affairs, Inc. or its owners.
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Jessica Federico is an employment law attorney at Ballard Spahr and advises public and private employers alike. She advises employers on the defense of discrimination claims, wage and working time disputes, dismissals of employees and restrictive agreements.