Tracking COVID-19’s Impact On Employment Law: Difficult At Best, Contradictory At Worst

Ed. note: As part of our special coverage of COVID-19, this is the first in a series of interviews with experts from Wolters Kluwer on the pandemic’s impact on particular practice areas.

What are the immediately apparent effects of the current crisis on labor and employment practitioners?

Labor and employment lawyers are inundated with the impacts of the COVID-19 crisis on employers—and the onrush of legal developments to track. Subregulatory guidance is pouring from the agencies, mostly the Labor Department (specifically, the Wage Hour Division and OSHA) but also the EEOC. Even CDC guidance is directed specifically to employers. (The Department of Homeland Security is also issuing guidance on employment-related immigration topics.)

Because of the push to get information out to affected employers quickly, it’s often difficult at best, and confusing and contradictory at worst, to track the newest guidance from the agencies: For example, both the EEOC and DOL tend to just add new FAQs to an existing document, while OSHA industry-specific employer guidance can demonstrate a flair for the obvious.

Employment law practitioners have told us they don’t have time to sleep, there’s no such thing as a weekend, and that if they write something in the morning, it’s out of date by the afternoon. Plus, it seems like everybody’s writing: The ABA Task Force on Legal Needs Arising Out of the 2020 Pandemic launched a website to provide information about resources, changes in benefits, and emerging legal issues caused by the COVID-19 pandemic. Stanford Law School has created a database of firm resources and law firm memos on COVID-19. It includes well over 4,000 documents. Most of the major law firms have pushed out their COVID-19 resources—white papers, blogs, etc.—on their firm websites as well.

At the same time, this crush of business doesn’t necessarily mean a ton of new revenue, as many clients may have seen their businesses grind to a halt. Reports of salary cuts, furloughs, and layoffs at law firms are emerging, even at major L&E firms.

Are you seeing client demand for legal services change? How?

There certainly is an increased demand for information due to severe impacts to employment—layoffs, furloughs, worksite closures; complex new legislation: paid leave, unemployment, small business loans; safety concerns and OSHA guidance; fear of COVID-related whistleblower or other litigation.

Reopening concerns. There are complicated reopening concerns for employers: Who decides when to open back up? Then, which employees will get to return to work, specifically to onsite work? Based on what test? Temperature taking? Negative COVID-19 tests? Positive antibodies tests? And what happens if the best-laid plans go awry and an employer opens too early? Where is there legal cover for employers forced to make decisions in a very uncertain environment?

Work from home. Here’s another worry: Once work-from-home is out of the bottle, will employees balk at returning to the worksite full-time? How many office-based employers will be able to define on-site attendance as an essential job function if employees have proven they can successfully work from home for a month, two months, three months? If schools aren’t opening for the remainder of the year, will employees be able to return to work even if their employer directs it?

The post-pandemic workplace. Then there are questions about what the workplace will look like upon reopening, at least initially. How will social distancing be engineered, by staggered days in the office? Staggered shifts? Closed common areas? Limited access to restrooms? Directional arrows in hallways? What will happen to the open office concept when employers are urged to maintain social distancing in order to reopen their workspace?

Litigation. This level of uncertainty is unprecedented, a word both overused and very apt when it comes to COVID-19. And because of uncertainty, litigation is sure to be the result. In fact, Stephanie L. Adler-Paindiris, Principal in the Orlando, Florida, office of Jackson Lewis and Co-Chair of the firm’s Class Action and Complex Litigation Practice Group, pointed out that she expects to see claims involving disability and leave of absence management; the firm has already seen some cases filed over the Families First Coronavirus Response Act (FFCRA) and whether emergency FMLA or paid sick leave should have been granted under the new law, whether the employer entity is subject to the FFCRA, and whether an employee has been retaliated against for seeking leave under the FFCRA.

She also expects more litigation is coming with respect to privacy, data, and cybersecurity: these claims were already on the rise pre-COVID, and she expects these claims to “skyrocket.” Other fertile areas for litigation include COBRA, WARN Act, and the always popular wage-hour and discrimination, harassment, and retaliation claims.

What are some additional responsibilities the COVID-19 crisis has foisted on employers?

Just a few months ago it was unthinkable that employment lawyers would be advising clients on how to legally take their employees’ temperatures on a daily basis. Now employers are wondering who’s going to conduct those temperature tests, and where? Will it be HR personnel? In private or in front of other employees? As employees enter the facility? This can present some thorny legal issues.

Temperature-taking. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, the EEOC confirms that employers may measure employees’ body temperature. However, not everyone with COVID-19 has a fever—or any symptoms at all, we’re discovering. And while an employer may maintain a log of those temperature checks, it has to maintain the confidentiality of this information. What about the confidentiality of the test-taking environment itself?

Isolation rooms? OSHA guidance urges employers to immediately isolate individuals who have signs or symptoms of COVID-19 and train workers to recognize the symptoms and isolate the individuals. This may be logistically difficult to do while maintaining confidentiality. OSHA guidance also notes that “Although most worksites do not have specific isolation rooms, designated areas with closable doors may serve as isolation rooms until potentially sick people can be removed from the worksite.” OSHA also suggests that the number of personnel who enter isolation areas should be restricted, too.

Reliable medical tests. EEOC Q&As discuss the steps that employers can take that are consistent with the ADA to screen employees for COVID-19 when they enter the workplace when stay-at-home orders are modified or lifted in their localities. The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Right now, though, it is not entirely clear when asymptomatic individuals do or do not pose a direct threat.

Testing issues. As people who are monitoring the news about testing know, there are wide variations in the availability of testing for COVID-19 infection and who qualifies for COVID-19 testing; even more questions surround COVID-19 antibody testing. Here’s a question that employment practitioners likely are pondering: To what extent does President Trump’s 3-phase reopening plan place the burden of return to work testing on employers?

When the president unveiled his reopening plan, his guidelines instructed employers “to develop and implement appropriate policies, in accordance with federal, state, and local regulations and guidance, and informed by industry best practices,” regarding:

• Social distancing and protective equipment;
• Temperature checks;
• Testing, isolating, and contact tracing;
• Sanitation;
• Use and disinfection of common and high-traffic areas; and
• Business travel.

The guidelines also told employers to monitor their workforce for “indicative symptoms” and not to permit symptomatic people to physically return to work until cleared by a medical provider. Employers also were told by the guidelines to develop and implement policies and procedures for workforce contact tracing following an employee COVID+ test.

Antibody testing. Not all areas have adequate COVID-19 testing, however; very few areas have antibody testing. And employers that have attempted to implement antibody testing to date have run into problems with reliability. According to an April 19 New York Times article, “Antibody tests, seen as key to reopening country, are raising alarms,” the FDA has allowed about 90 companies (many based in China) to sell tests that have not been vetted by the government. Some of these tests have been characterized as having “frankly dubious quality.”

All of this makes for an alarming amount of employer responsibility, significant scientific and medical complexity, and comparatively little clarity as to how employers can do the right thing—even when they are attempting to strictly follow available guidance.

What are the confidentiality issues that arise when employers must conduct testing?

When an employer learns that an employee is infected (or potentially infected) with COVID-19 as a result of self-disclosure, observed symptoms, or a test, it will need to maintain confidentiality of that employee medical information. Clearly, test result information or self-disclosure documentation must be kept in confidential files separate from the employee’s personnel file.

Confidentiality generally. EEOC Q&As addressing the confidentiality of medical information explain some, but certainly not all, confidentiality ramifications of employer testing:

• An employer may store all medical information related to COVID-19 in existing medical files, including an employee’s statement that he or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
• An employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.
• A temporary staffing agency or a contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19, and also disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

Employers with existing drug testing confidentiality protocols will want to consider their applicability to COVID-19 testing protocols.

COVID-19 differences. But there are going to be differences in how confidentiality is treated in a pandemic. Observing symptoms of COVID-19 in an employee may mean employers must send that employee home and not permit them to return to the worksite until the employee has either self-isolated for 14 days or provides evidence of a negative test, which may be difficult or impossible to obtain, or until employers have “other assurance that there is no risk of exposing others to COVID-19.” While employers are expected to confidentially maintain the information they have, coworkers are likely to figure out who is suspected of having the virus. Employers need to be prepared and to train managers on how to respond to inevitable questions.

Contact tracing. Also, to the extent employers are expected to conduct some type of contact tracing, confidentiality may be even more difficult to maintain. Employers are being asked to create a close-contacts list so that coworkers at potential risk of exposure can be advised of their risk (but not told the name of the employee) and perhaps be asked to self-isolate, depending on the type of workplace and risk of spread, until it is known whether the employee with symptoms actually has COVID-19.

This is another area where more traditional approaches are muddied. Confidentiality can be seen as a two-edged sword. Employees are certainly entitled to confidentiality regarding their health issues, but neither employees nor employers should attempt to use confidentiality as a cover to shield lack of compliance with health guidelines.

The uncertainty about COVID-19 and resulting legal responsibilities has created unease among both employers and employees. Where is that evident?

There are many ways to approach that question, but here are a couple of examples.

First, early in April, the estate of a former Walmart employee alleged to have died from complications of COVID-19 contracted at work sued the retailer in an Illinois state court, alleging that store management knew several workers and individuals had symptoms of COVID-19 but failed to take appropriate action to keep workers and customers safe from the high risk of infection. Before the employee died (just a few weeks before suit was filed), several workers and individuals at the Walmart store in Evergreen Park, Illinois, had symptoms of COVID-19, according to the complaint. Another worker purportedly died four days later due to coronavirus complications.

Although many negligence-based claims, such as this one, against a worker’s employer are likely barred by workers’ compensation laws, the complaint also names the shopping center in which the Walmart store is located—likely an attempt to avoid workers’ compensation exclusivity provisions and find another potential deep-pocket defendant.

Seek out all available guidance. How do employers guard against being the target of litigation? All employers want to do everything they can to protect workers, regardless of the potential for legal liability. As a start, employers need to be mindful of multiple (and perhaps conflicting) federal, state, and local directives—especially as to essential businesses and stay-at-home or shelter in place directives.

There is also valuable guidance from the CDC and OSHA, which has issued a number of industry-specific alerts offering safety measures that employers can implement to protect employees. The Department of Labor has also provided significant guidance on employers’ responsibilities under the FFCRA and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Certain states and localities are also providing specific guidance.

Document. Finally, employers need to keep track of everything they are doing in response to the new laws and government guidance. They should create and maintain the necessary documentation to show how they have implemented these new requirements and to support the workplace decisions they have made.

Retaliation. Over the past several weeks, employers have been dealing with the additional challenge of employees claiming to be subject to retaliation for raising concerns about health and safety or compliance with various COVID-19 related directives. According to various media reports, hundreds and perhaps thousands of complaints have been filed with OSHA over essential worker safety issues.

Employers must be very careful about how they respond when employees complain about a lack of COVID-19 safety measures. Generally, workers are protected under workplace laws from retaliation for reporting what they believe is unlawful employer conduct, including workplace safety violations, lack of PPE, dangerous working conditions, and who face retaliation for making such complaints public.

Two state court cases from Kentucky illustrate this. In King v. Trader Joe’s East, Inc., a Trader Joe’s employee created a private Facebook group for employees to discuss their concerns about the grocer’s lack of safety measures for employees. The employee alleges that when a manager confronted him about the Facebook group, the employee asked the employer to provide additional sanitizers, cleaning products, gloves, and masks. The manager, however, reportedly asked for his resignation, and when the employee refused to resign, the manager terminated him. The plaintiff is alleging wrongful discharge in violation of public policy.

In the second case, Norris v. Schoppenhorst-Underwood Brooks Funeral Home, LLC, the president of a funeral home alleges that after the governor’s directive limiting social gatherings to less than 50 people, she called a staff meeting to develop a strategy to comply with the directive and other measures to slow the spread of COVID-19, such as more frequent cleaning. The owner of the funeral home allegedly disagreed with this approach and, instead, fired the president. She filed suit seeking reinstatement and backpay.

These cases and other COVID-related class litigation are tracked by Dorsey & Whitney partner Kent Schmidt in his Left Coast Law blog, where he writes about retaliation claims and COVID-19 class actions (not just employment-related). Aside from telling employers to not engage in obvious retaliation, Schmidt advises employers to review their reporting processes and to ensure that supervisors know to take all complaints seriously and document them. “Every complaint or concern needs to be documented and escalated to a health and safety point person. Maybe that point person needs more support now,” he told Labor & Employment Law Daily.

Do you foresee lasting changes to employment law that will endure past the point when the crisis has subsided?

The nature of the employment relationship has changed dramatically in recent years as employers have shifted to new business models and workers increasingly find themselves in contingent, agency, part-time, and gig work. Of course, the coronavirus pandemic has “stressed the system,” starkly revealing that, for much of the workforce, these arrangements have not been secure ones. Full-time employees have also felt the impact, though they are more likely to have systems in place for a softer landing. Where the absence of a traditional employment relationship has left workers vulnerable, government has had to scramble to fill the gap—to ensure gig workers can seek unemployment benefits, for example.

Which workers are really “essential”? COVID-19 also has exposed the sharp disparity between the segment of the workforce that can work safely and securely from home—largely a higher-paid white-collar segment—and the lower-paid “essential workers” who must work onsite and face much higher risk. The pandemic seems to have sharply shifted public opinion and may create pressure to provide livable wages and more safety and security for these vital members of the workforce.

Depressed hiring. On the other hand, employers may be reluctant, when ramping up again, to engage in large-scale hiring, particularly with growing fears of a second COVID-19 wave. The pressures to right-size, to ensure worker safety, and to grapple with a flurry of new legislative and regulatory requirements will be immense, as will the corresponding rise in labor organizing, wage-hour suits, and other class litigation.

In the short term, employment practitioners will have to help employers respond to these compliance challenges and significant liability risks. Longer term, businesses will continue to innovate to adopt business models that enable them to operate with a nimble workforce, partly to minimize the disruption and potential liability of such an upheaval. Practitioners will be called upon to assist in structuring staffing contracts and business organizations accordingly.

Moreover, the pandemic has brought an unexpected, dramatic resurgence of the role of government in our lives, and a return of the regulatory state—which will shape employment law for the foreseeable future. How long will it persist? It will depend in no small part on how swiftly the pandemic is quelled and our economy revived (and, of course, the outcome of the November election).

How do you think employment law practitioners will seek to differentiate themselves in the new competitive landscape?

We’ve already seen considerable innovation on the part of employment practitioners during this crisis. As the bottom fell out, leaving clients facing unprecedented business and legal challenges and unsettling uncertainty, labor and employment firms have ramped up quickly. They’ve had to scramble to evaluate federal and state legislative and regulatory developments and provide guidance for their clients on how to comply with or leverage them. The top firms have offered significant amounts of free content, packaged in quick, accessible formats—coronavirus resource pages, with Q&As updated constantly as new factual scenarios and legal questions arise; daily “coronavirus update” webinars, and other tools.

Of course, firms that were able to seamlessly transition from an office environment to work from home and that had already significantly invested in legal tech solutions no doubt found themselves at an advantage during the initial phase of the pandemic.

Finally, management firms will distinguish themselves by the extent to which they provide updated information and clarity, guide clients through the regulatory thicket, and partner with them to solve their business problems during this turbulent time. The crisis has been an opportunity for full-service firms to show their value, particularly with the movement toward one-off legal services and new delivery models. For now, advice-and-counsel and compliance assistance are key to serving clients in this pandemic. The litigators will take center stage soon enough.

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Joy P. Waltemath is currently Managing Editor for Employment Law Daily and compliance-related Bankruptcy, Energy, Insurance, Products Liability and Safety, and Transportation products for Wolters Kluwer Legal & Regulatory U.S.

Lisa Milam is a Senior Editor/Analyst for Employment Law Daily. She has been a member of the labor and employment team at Wolters Kluwer Legal & Regulatory U.S. for more than 15 years.