My wife is a scientist. Technically, she is an Analytical Chemist who manages a testing laboratory. Our professional worlds rarely cross paths, and we hardly talk shop at the dinner table. Until the last few weeks. Her job puts her at the forefront of the antibody testing phenomenon that some consider the key to getting the country working again. Recently, New York began “the most aggressive” antibody testing program geared toward reopening the state economy. One country is going as far as issuing immunity passports to people who are deemed recovered from COVID-19 (partly on the basis of antibody tests).
Here is the basic premise: employees can return to work before others if their antibody testing shows some exposure, and associated immunity, to coronavirus. Promising as this sounds, discrimination sirens should be deafening for HR professionals, as it would lead to a world where employees are treated favorably due to a medical reason. This practice is unlikely to pass muster with the EEOC and other fair employment practice agencies.
While antibody discrimination lawsuits may never become a thing, there are lots of legal risks associated with negative employment decisions made during this pandemic. My colleague Andrew Adams and I will discuss these risks during our next complimentary webinar, on Thursday, May 7, 2020, from noon – 1 pm. You can register here:
Will COVID-19 Lawsuits Become Part of the “New Normal”?
In the meantime, here’s a preview of what we will be talking about during the webinar.
FFCRA Violations
By now, you all know that the Families First Coronavirus Response Act (“FFCRA”) allows employees to take paid leave for a number of COVID-19 related reasons. Previous Skoler Abbott blogs and webinars covering this new law can be found in our COVID-19 Resource Site. Employees who are denied FFCRA rights or retaliated against for taking FFCRA leave can sue for the same reasons as an employee whose FMLA rights have been violated. Successful employees may be entitled to reinstatement, lost wages, attorney’s fees, and double damages. The first FFCRA-related lawsuit was filed last month. We will talk about it during the webinar. Many more FFCRA lawsuits are certain to follow.
Disability Discrimination
Not surprisingly, the coronavirus outbreak is causing a great deal of stress and anxiety throughout the world. The CDC has a dedicated webpage on this issue. In the employment context, this is leading to more ADA-related requests for reasonable accommodations. Common requests include more time off, reduced hours, or other changes to the working environment. Denial of these requests can lead to liability under the ADA and state anti-discrimination laws. Employees who return to work after battling COVID-19 have protections, too. We will cover this helpful EEOC guidance during the webinar.
Whistleblower/Retaliation Lawsuits
Employees who raise complaints or concerns about workplace safety are protected against retaliation by the Occupational Safety and Health Act. Similarly, many states (including Massachusetts and Connecticut) have laws that protect health care workers who complain about practices that pose a risk to public health. We expect an increase in these lawsuits during this pandemic.
NLRA Claims
Under the National Labor Relations Act (NLRA), most workers have the right to act together to address work-related issues. This applies in both unionized and non-unionized settings, and may involve employees talking about working conditions, requesting health and safety precautions, and possibly even participating in a concerted refusal to work in unsafe conditions. Employees who are fired or treated negatively for engaging in this behavior have a potential NLRA retaliation claim.
Negligence
Recently, the relative of a retail store employee in Illinois who died from COVID-19 sued the retailer for negligence and wrongful death. The lawsuit claims that the employee contracted COVID-19 in the store, and the business did not do enough to protect employees from the virus. While workers who are injured on the job are typically covered by workers’ compensation insurance, which prohibits them from suing their employer for other civil wrongdoing, it remains to be seen whether workers’ compensation will apply in this scenario. Employers need to be aware of these legal theories, especially if an employee tests positive for COVID-19.
We will touch upon all of these topics this during our webinar next week. We hope you will join us.