Page 36 - BusinessWest October 26, 2020

The Safety Suits
Not surprisingly, several COVID-related law- suits involve health and safety claims. The com- mon theme among them is that a company failed to provide a safe environment either for their employees or for their customers. Some of the lawsuits allege a failure-to-warn component, i.e., that the company knew an individual had exhib- ited COVID-19 symptoms at the place of busi- ness, yet the company failed to inform employees and customers. Other lawsuits involve claims that companies either did not provide adequate PPE or otherwise take necessary precautions to pro- tect people.
An offshoot of the safety suits involve whistle- blower claims under OSHA, a federal law that addresses standards for workplace health and safety. Employees can blow the whistle on their employer by reporting potential workplace health and safety issues to (and filing complaints with) the Occupational Safety and Health Admin- istration, a division of the Department of Labor.
Many of the COVID-related OSHA claims are for retaliation. Specifically, several employees have filed complaints alleging they suffered an adverse employment action after notifying their employer of violations of social-distancing guide- lines or failures to maintain proper cleaning of workspaces or PPE.
Discrimination
Age, disability, and pregnancy discrimination cases related to COVID-19 have been on the rise since the summer months. These types of cases typically arise under the following general set of
circumstances: the employee refuses to return to the physical workspace citing their age, disabil- ity, or pregnancy as too much of a risk factor, and their employer terminates them or, in the context of disability and pregnancy, does not accommo- date them by allowing them to work at home.
However, these same types of discrimination cases arise in a different way as well, underscor- ing the fact that no good deed goes unpunished. Believe it or not, good-intentioned employers that have told their older workers or those with known pre-existing conditions to work from home, take a leave of absence, or accept a furlough while
not do this unless they can show their employee’s physical presence in the workplace poses a “direct threat,” which is an extremely high standard to meet.
The Families First Coronavirus Response Act (FFCRA)
The FFCRA came into effect in what felt like a nanosecond and, thus, created a quagmire. Busi- nesses suddenly needed to understand the act, implement it, and comply with it.
The act, which included the Emergency Paid
“Some of the lawsuits allege a failure-to-warn component, i.e., that the company knew an individual had exhibited COVID-19 symptoms at the place of business, yet the com- pany failed to inform employees and customers.
bringing back their younger or non-disabled counterparts are getting smacked with age and disability discrimination claims.
Although these employers may have been act- ing out of concern for their workers that they per- ceived as high-risk, preventing them from return- ing to the workplace can give rise to a potentially viable age or disability discrimination claim. Indeed, the Equal Employment Opportunity Commission (EEOC), our federal enforcement agency for discrimination claims, issued guid- ance on this specific situation. In a nutshell, the EEOC has taken the position that employers can-
”
Sick Leave Act and the Emergency Family and Medical Leave Expansion Act within it, requires covered employers to provide employees with paid sick leave or expanded family and medical leave for certain qualifying reasons. The act took effect in April and presently is slated to remain in effect through the end of the year. It applies to employers with fewer than 500 employees.
Now that the act has been in effect for just over six months, lawsuits under it have begun to emerge. The major-
ity of these lawsuits
involve the caregiver
Lawsuits
Continued on page 49
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