The coronavirus pandemic has dramatically impacted the majority of employers in our country. Every workplace had their normal operations affected in a multitude of ways. As of today, states are still in various stages of their phased reopening plans – and many employers are planning to bring employees back to the physical workplace or have already done so. For most, it has been a difficult endeavor with new procedures and methods to implement.
Business owners should schedule a consultation with an attorney to identify potential hazards related to reopening that could result in a lawsuit. From rights and regulations, to contracts and agreements, The Floyd Law Firm has experienced business law attorneys available as legal advocates. We offer legal counsel and practical solutions to a wide variety of business litigation and corporate problems.
Discrimination allegations may often be the biggest issue. When this coronavirus pandemic initially hit and businesses had to shut down, many employers were forced to implement worker layoffs and employee furloughs quickly. However, some employers failed to take the necessary time to properly analyze – or to have an attorney review – who were being affected. Some of the frantic personnel decisions may end up being viewed as having a disproportionate effect on workers of a particular ethnicity, age, or gender. Occurrences of this in any workplace could leave the employer vulnerable to a “disparate impact” claim under federal or state anti-discrimination laws.
Employers that have been lucky enough to avoid layoffs or furloughs in large numbers – but expect to have to implement them in the coming weeks – will be setting themselves up for problems if not done correctly. Reviewing plans in advance with an attorney to ensure personnel decisions can be justified on legitimate business concerns is key.
Wage-and-hour claims are also a potential hurdle, particularly for businesses with “non-exempt” (hourly or low-salaried workers) working from home during the pandemic. Work-at-home situations can lead to wage and hour claims because they lend themselves to blurred lines between company time and personal time, especially when workers are anxious about their job security. Lax record keeping that can occur during a chaotic time could lead to workers having legitimate claims that their employer failed to pay overtime or the legal minimum wage.
Non-exempt employees are also to be considered. A furloughed exempt worker that is at home and not getting paid, but receiving work-related calls or emails, may be entitled to a full week’s salary for whatever time is spent helping. It is also important to note that in many states, a wage law violation means that the employer has to cover any unpaid wages as well as the worker’s attorney fees and double (or even triple) their damages.
Worker safety is a third area of risk for employers. Penalties can be significant under state and federal workplace health and safety laws, some of which may even provide financial incentives for “whistle-blowers” to report violations. Employees could also potentially bring lawsuits claiming they contracted COVID-19 when they went back to work because their employer failed to follow state and federal guidelines for social distancing or provision of masks and other personal protective equipment.
Realistically, these may be tough lawsuits for an employee to win. It can be difficult to prove where someone contracted a virus and a court may also find that worker’s compensation is the sole available remedy. But litigation is disruptive and costly even when one prevails, so strict compliance with all legal guidelines is still the best defense.
Older workers and employees with preexisting conditions – or those who live with someone who is high-risk – may be uncomfortable returning to the workplace because of their heightened vulnerability to the virus. Employers need to talk to an attorney to determine what obligations are required to accommodate these workers under state and federal law. They may need to be allowed to continue to work at home or provided time off from work. Family and medical leave laws could come into play here as well.
As business owners take the necessary steps to keep the workplace safe, remember that while guidelines permit checking workers’ temperatures and asking questions about symptoms, their privacy must be protected. Failure to keep medical information confidential risks liability under HIPAA and state privacy laws.
The Floyd Law Firm PC is your resource for Business & Corporate Law serving Surfside Beach, Myrtle Beach, and throughout South Carolina. We are committed to helping business owners with professionalism and advocacy. If you need our help reviewing your business employment practices, please do not hesitate to Contact Us.