It goes without saying by now that the Coronavirus (COVID-19) will create a series of unique employment law issues even for the most prepared employers. While it is indeed good corporate hygiene for employers to be mindful of how the traditional alphabet soup of employment laws (e.g., FMLA, ADA, and their state and local equivalents) may apply to the workplace issues presented by this virus, employers would also be well served by removing any blinders that may be limiting the scope of their preparation.
National Origin Discrimination
There have been incidents of people being shunned, refused service, and publicly berated because they appear to be from an Asian country or another area of the world suffering from a severe outbreak of the virus. It does not require too great a leap to expect similar scenarios to unfold in the workplace. One could easily imagine a situation where employees shun or even refuse to work with a colleague who is caring for their elderly South Korean parent because of such a connection. Depending on how such a situation evolves, an employer may face a national origin and/or race discrimination claim under Title VII.
In addition, two Federal laws traditionally associated with manufacturing or industry rather than office environments–the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSHA)–should also be considered when responding to virus-related workplace issues.
Employers are required by virtue of Section 5(a)(1) of OSHA to “. . . furnish each of [their] employees a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is often referred to as a general duty clause. Sophisticated businesses whose employees work in offices nearly universally assume that, because they do not work in “industry” or “manufacturing”, OSHA does not apply to their workplace. However, OSHA is “collar” agnostic – it applies to both the “white-collar” and “blue-collar” workplace. If an employer does not take reasonable steps to protect its workforce from infection from the virus, it could very well face a claim for breach of the general duty clause resulting in both a private right of action by the employee and litigation from the Secretary of Labor. Moreover, under the regulations of the federal Occupational Safety and Health Administration (and many related state agencies), a single employee can, in effect, anonymously trigger an investigation.
Employees are protected in their right to share their concerns with each other about their workplace. That right is embedded in Section 7 of the NLRA which provides employees with the “right to . . . engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers should expect that employees will inevitably discuss the company’s response to the virus either in the office or outside of the office. And, perhaps of greater import, employers can expect an uptick in employees’ social media activity. Employers are cautioned to tread carefully when deciding whether to take action against employees for engaging in such activity because doing so could be deemed to be an unlawful retaliatory act under Section 8 of the NLRA. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. An impacted employee could file a charge with the National Labor Relations Board.
One arrangement that many employers (e.g., Google, Coinbase, Twitter) are considering is allowing (or directing!) their employees to work from home. Pre-coronavirus, nearly 70 percent of employers said they allowed employees to work remotely on an ad-hoc basis, according to a 2019 survey by the Society for Human Resource Management. By working at home, employees would greatly diminish their susceptibility to contracting the disease. Remote working is something that the proactive employer should be considering at this juncture. Employers should remember that out-of-sight is not out-of-mind, and the NLRA will apply to your remote workers as well as your remaining on-site employees.
Employers should keep in mind that their employees are watching and judging the quality of their response to this crisis. Managing the workforce during the outbreak is only part of the problem. Successfully keeping them once the crisis has abated is the other part of the problem. The employers who are aware of both the obvious and less obvious risks, and who integrate not only sound legal advice but compassion and common sense, will be better positioned to successfully manage the wide variety of workplace issues COVID-19 is sure to present.
If you have questions regarding preparation for and responding to the variety of complex workplace issues that may result from the spread of this virus, please contact Philip S. Mortensen. Meanwhile, take care.
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