By Sarah Abshear
As businesses reopen in the wake of the global pandemic, it will not, at least immediately, be back to business as usual. Employers can expect to face new challenges relating to COVID-19, including an increased focus on worker safety, requests for accommodations, and risks for discrimination and retaliation claims.
Gov. Gavin Newsom recently announced that California has entered the beginning of Phase 2 in the reopening of the economy, with small retailers able to provide curbside pickup. But even once all California businesses are authorized to reopen, it is likely that they will do so under restrictions, and some workers will have concerns about returning to work.
For example, even though essential businesses remain open now, California has issued public health guidance urging individuals who are over 65, immunocompromised, or have serious chronic health conditions to stay at home. Businesses should expect these same individuals to be given increased protections, up to and including being allowed to continue to stay home when businesses first reopen.
Staying on top of guidelines issued by the state is important to ensure compliance in what is a rapidly evolving legal landscape. Subscribing to employment law newsletters is one way businesses can consider doing so. Websites for the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration contain helpful guidance.
Employers should also carefully consider any requests from workers relating to health and safety. California law protects workers who complain about what they consider to be health and safety concerns at work. In addition, California employers are already required to have a workplace Injury and Illness Prevention Plan, which they should consider updating in light of virus concerns. Being proactive about social distancing, sanitation, and other protective measures prior to receiving any complaints is the best approach.
Workers may also request modifications to the workplace or conditions of employment. There are two basic types of requests — those made by employees to accommodate an underlying health condition, such as exposure to the virus or increased susceptibility to the virus, and those made by employees to protect their safety, such as preventing or decreasing exposure at work.
The former is protected by disability law, and the latter by workplace health and safety regulations. Employers are not always required to grant such requests, but may have to under certain circumstances. They may be required to engage in an interactive process to accommodate underlying health conditions.
The biggest pitfalls employers may face are discrimination and retaliation claims based on their handling of such complaints, as well as any other employment actions they take in the pandemic. Employers should be careful to treat all employees equally. For example, when deciding which employees return to work, an employer should be careful to use objective, legal criteria.
While a decision to bring back only employees under 65 without serious health conditions might seem to make sense in the face of the pandemic and guidelines allowing such workers extra protections, an employer who did so would face liability for disability discrimination. On the other hand, the same employer might be required to allow those same workers to work from home if they request it, as a reasonable accommodation. Working from home brings its own risks, particularly for hourly employees, who must still be provided with lunch and rest breaks.
It is highly advisable during this time to consult an employment attorney whenever determining which employees will face a certain employment action, deciding how to respond to an employee complaint or request relating to COVID-19, and when making policies to keep employees safe as they return to work, such as an Injury and Illness Prevention Plan. Businesses can also mitigate their risk by keeping written documentation of their legally permissible decision-making processes. For example, if an employer determines who to lay off or rehire based on seniority or industry experience, the employer should document that was the basis for the decision.
As employers face increased litigation risks in the post-COVID-19 environment, it is also advisable to update employee handbooks, particularly work-from-home and health-and-safety policies, and enter into arbitration agreements with employees. A well-written arbitration agreement can help employers by decreasing the risk of unpredictable jury verdicts, keeping disputes with employees more private, and prohibiting class actions.
Sarah Abshear is an employment law attorney with Brown Law Group in downtown San Diego.
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