As employers reopen their physical workspaces they should anticipate challenges to their reopening plans as well as to the workplace arrangements adopted during the pandemic. The top areas for COVID-19-related employment litigation include disability and accommodation claims, wage-and-hour disputes, and workplace safety complaints.
COVID-19 brought significant workplace changes and forced many employers to make quick decisions about alternative workplace arrangements to ensure the continuity of business operations. Those decisions included the relocation of employees from workplace offices to home offices, and the adoption of measures to ensure the workplace safety of employees. As the pandemic morphs into an endemic, and employers focus on return to workplace plans, they may face a surge of employment litigation over return to workplace claims, wage-and-hour disputes, and workplace safety complaints. Up-to-date policies concerning how workplaces are reopened, which employees are recalled to the workplace, and how to continue to protect employees from exposure to COVID-19 in the workplace are essential to minimize legal risks and defend against potential litigation.
Return to Workplace Claims
Compelled by the COVID-19 pandemic, many employers implemented remote work arrangements as a temporary solution. As employers are returning employees to their physical workplaces, some are considering permanent adoption of hybrid remote work arrangements or the elimination of remote work arrangements altogether. The reduction or elimination of remote work arrangements may spark disabilityand accommodation-related claims. Guidance from the Equal Employment Opportunity Commission (EEOC) confirms that employers are not required to accommodate every employee seeking a remote work arrangement or to change essential job functions to enable a remote work arrangement merely because the employer did so to mitigate the spread of COVID-19. Instead, requests for remote work accommodations should be treated like any other request for an accommodation under the Americans with Disabilities Act (ADA).
For an accommodation under the ADA, it is permissible for employers to request medical documentation to determine if the employee is disabled and whether an extension of a remote work arrangement is reasonable or would impose an undue burden on business operations. Reasonableness depends on the circumstances and requires a fact-specific examination of all relevant factors. The first COVID-19-related disability lawsuit filed by the EEOC demonstrates the importance of the requisite evaluation.
According to the complaint filed by the EEOC, the employer required all of its employees to work remotely four days per week at the start of the COVID-19 pandemic. A few months into the pandemic, after the employer required employees to return to the workplace five days per week, the employee requested an accommodation to work from home two days per week because of her medical condition. The employer denied the request even though it allowed others who held the same position to work from home, and a month later it terminated the employee's employment for performance-related reasons. The EEOC filed suit against the employer for unlawful denial of the requested accommodation, unlawful termination and retaliation. In its press release the EEOC stated: "Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time. In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic." The lawsuit highlights the need for employers to consider the totality of the circumstances, including the status of the pandemic, before withdrawing or denying an employee's request to continue a remote work arrangement.
Wage-and-Hour Disputes
Employers also may encounter COVID-19-related wage-and-hour claims, including claims for unreimbursed work-related expenses incurred by remote workers and off-the-clock work or unpaid overtime. The transfer of employees from workplace offices to home offices may have had the unintended consequence of shifting work-related expenses to employees. Under the Fair Labor Standards Act (FLSA), hourly employees are entitled to reimbursement of work-related expenses if the expenses drop the employee's compensation below the applicable minimum wage.
Several states, including California, Illinois, Massachusetts and New York, have enacted employee expense reimbursement laws that may exceed the requirements of the FLSA. For example, California requires employers to reimburse employees when they use their personal cellphones for work even if there is no increased cost to the employee. Other expenses that may be covered by state expense reimbursement laws include internet service, office supplies and equipment necessary for employees to perform their jobs remotely.
Continuation of remote work arrangements increases the risk of unpaid reimbursement claims. Such claims can be considerable, especially if they are pursued as a class action. The lawsuit filed in the Superior Court of the State of California against a commercial broadcasting company in February 2022 is a prime example. The class action complaint alleges that an estimated 1,000 remote work class members incurred unreimbursed expenses of approximately $2.9 million, exclusive of attorney fees. To reduce the risk of unpaid reimbursement claims, employers with remote workforces should adopt a clear remote work-related expense reimbursement policy. The policy should identify the specific work-related expenses covered by the policy, indicate whether expenses must be preapproved by the employer, and instruct employees on how to document and submit expenses for reimbursement.
Employers also must ensure that nonexempt remote employees are paid for all compensable time—all time worked—and cannot permit hourly employees to work in excess of 40 hours per workweek without paying them overtime. Under the FLSA, the burden is on the employer to track the number of hours of compensable work performed by employees to ensure they are compensated for all hours worked. Compensable time includes work not requested but allowed and work the employer knows or has reason to believe is being performed.
To reduce the risk of remote work-related off-the-clock wage-and-hour claims, employers should adopt time reporting policies requiring nonexempt employees to accurately record all time worked via remote work arrangements. The policies should prohibit employees from performing work outside of normal work hours without prior written authorization and should include a ban on after-hours use of employer-provided electronic devices such as computers and smartphones.
Employers must be mindful of time spent for COVID-19 safety measures by nonexempt employees who are recalled to the workplace. Employers that require employees to have their temperature checked or to complete health questionnaires at the start of or during the workday should consider whether that time could be compensable. Several lawsuits, including class and collective actions, have been filed against employers for failure to pay wages or overtime related to time spent undergoing mandatory COVID-19 screenings such as temperature checks and completing COVID-19 health questionnaires before and during work hours.
Workplace Safety Complaints
Employee lawsuits alleging that employers failed to adequately protect employees from the spread of COVID-19 in the workplace should be anticipated. These lawsuits generally raise state tort law causes of actions. To the extent COVID-19 exposure may be traced to the workplace, tort claims for compensatory damages asserted by employees against their employers are likely to be barred by state workers' compensation laws. Workers' compensation law is generally the exclusive remedy for occupational injuries; however, employers should take appropriate steps to ensure workplace safety. Those steps include following applicable federal, state and local health and safety guidance to address the risk of contracting COVID-19 in the workplace.
Employers also need to be aware of an increased risk of retaliation lawsuits filed under federal and state law by employees who allege they were disciplined or discharged for complaining about COVID-19-related health or safety concerns. Retaliation occurs when an employer takes a materially adverse action against an employee who engages in protected activity such as raising a concern about workplace safety. Adverse actions may include discipline, denials of overtime or promotion, reduction in pay or hours or termination. Protected activities include raising workplace safety issues directly with an employer, filing a formal complaint with the Occupational Safety and Health Administration (OSHA), and participating in an OSHA inspection or investigation.
Section 11(c) of the federal Occupational Safety and Health Act (OSH Act) prohibits employers from retaliating against employees who engage in protected activity related to health or safety in the workplace. Remedies under section 11(c) are limited and a private cause of action is not available. However, several states have anti-retaliation laws that provide whistleblower protections for employees who complain of violations of health and safety laws. The rights and remedies under the laws vary from state to state. Employees may be entitled to pursue civil litigation and recover significant damages if they prove that an employer took adverse action against them because they raised COVID-19-related health and safety concerns.
Implementing appropriate health and safety practices to limit the spread of COVID-19 in the workplace is the first step to avoiding workplace safety claims. Employers should have policies and procedures in place for employees to report health and safety concerns without fear of retaliation. All employees, including supervisors and managers, should receive training about the reporting procedures and anti-retaliation policies. All reported workplace health and safety concerns should be taken seriously, addressed and documented. Claims of retaliation arising from the reporting process also should be addressed and investigated. In the event it is necessary to discipline an employee who recently raised health or safety concerns, the reasons should be documented and the discipline should be proportionate and consistent with disciplinary action imposed on other employees who engaged in similar conduct but who had not complained about health and safety concerns.
Moving Forward
As employers reopen their physical workspaces they should anticipate that there will be challenges to their reopening plans as well as to the workplace arrangements adopted in response to and during the COVID-19 pandemic. The top areas for COVID-19-related employment litigation include disability and accommodation claims, wage-and-hour disputes, and workplace safety complaints. Employers should review and update their workplace policies and procedures and consider providing additional training to supervisors, managers and others responsible for implementing the policies to ensure proper handling and to minimize legal risks.
Originally Published by New Jersey Law Journal
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
