Written by Beth Doherty Quinn, Employment Attorney at Baird Quinn LLC.
Colorado appears, to date, to have successfully slowed the spread of COVID-19. Now, much of Colorado is open – with restrictions in place aimed at preventing further spread and protecting those at highest risk for severe illness. For Colorado employers, navigating the myriad Federal, State and local laws, regulations, and guidance relating to opening up is a challenge. Missteps can lead to legal troubles. Here are answers to just a few commonly asked questions:
What legal exposure does an employer have regarding its employees upon re-opening?
This is a new and developing area of law so the scope of employer liability is not entirely known. Hundreds of employment lawsuits have already been filed across the country relating to the COVID-19 pandemic. Thousands more claims that have not yet ripened into litigation have been made against employers. Some of those suits or demands involve claims by former employees who have been laid-off or furloughed, but many involve employees who have returned to the workplace. Examples of legal claims and allegations of active employees include:
- Failure to pay appropriate sick/leave time under the Families First Coronavirus Response Act (FFCRA) or similar state COVID-19 leave laws
- Retaliation against an employee who made a claim for such sick/leave time
- Failure to accommodate a disability (e.g., failure to allow telework during the pandemic)
- Failure to provide proper PPE in violation of OSHA standards
- Failure to assure a safe work space for employees at higher risk of contracting serious illness from COVID-19
- Retaliating against an employee who complained of inadequate PPE or workplace protections
- Failure to pay employees for the time required to dress in proper PPE
- Personal injury lawsuits for employees who have contracted COVID-19 (workers’ compensation laws are generally the appropriate avenue of relief for work-related injury, but exceptions exist)
How can employers increase employee safety and reduce legal liability?
The best thing employers can do is take the time to review and follow (as applicable) the Centers for Disease Control and Prevention (CDC) “Interim Guidance for Businesses and Employers Responding to COVID-19” and the Occupational Safety and Health Administration’s (OSHA) “COVID-19 Guidance.” These materials contain links to many subject specific guidelines (for example, guidelines for cleaning and disinfecting workplaces and quarantining exposed employees). Employers should take the time to read all of the materials. Employers also should review State and local guidance, such as Governor Polis’ most recent Safer At Home Order (D 2020 091)(expires June 30, 2020 unless extended) and the Colorado Department of Public Health and Environment Safer At Home Guidance (for office-based businesses, for example). However, some key, or additional, steps employers can take include:
- Taking the time to actually train and educate employees, especially managers, on the risks of COVID-19 and all new company COVID-19-specific policies and procedures; don’t assume they know.
- Encouraging employees, through policies or other communications, to come forward to report concerns about the company’s response to the COVID-19 pandemic (similar to how employers deal with sexual harassment complaints) and address those concerns and complaints immediately when they arise.
- Over-communicate with employees, including regularly encouraging/requiring employees to stay home and seek medical attention if they have COVID-19 symptoms, and informing employees, in conformance with CDC guidance, when there is a case of COVID-19 at the workplace or if an employee was potentially exposed.
- Review, in particular, the CDC’s “Resuming Business Toolkit” found at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/Resuming-Business-Toolkit.pdf. Keep this as a record of steps the employer has taken to assess and reduce workplace risks associated with COVID-19.
- Pay particular attention to OSHA’s guidance on PPE which states that “employers are obligated to provide their workers with PPE needed to keep them safe while performing their jobs.” Similarly, the federal Occupational Safety and Health Acts state that employers must provide employees a place of employment free from recognized hazards that cause death or serious physical harm. Several lawsuits that have already been filed relate to a company’s failure to provide proper PPE, a safe work environment, or a company’s conduct with regard to an employee who complained about improper PPE/unsafe work environment.
- Since the employees impacted most significantly by COVID-19 tend to be older or those with pre-existing conditions, keep in mind the company’s obligations under the Americans With Disabilities Act (ADA), Family Medical Leave Act and the Age Discrimination in Employment Act. The U.S. Equal Employment Opportunity Commission (EEOC) has issued helpful guidance regarding COVID-19’s impact on ADA responsibilities, for example.
- Realize that the increased litigation risk from the pandemic may cause employees to also raise other, non-COVID-19 claims. Ensure that your workers are not misclassified as independent contractors, or as exempt from overtime under the Fair Labor Standards Act. Ensure that your pay practices are in compliance with State wage laws and regulations.
- As always, continue to appropriately document all personnel actions.
Are there any special considerations for employees who are at higher risk for severe illness from COVID-19?
Yes. For example, employers should consider the following:
- The EEOC issued guidance stating that employees with disabilities that put the employee at high risk for complications from COVID-19 may request telework as a reasonable accommodation to reduce their chances of infection. The ADA, and state disability laws, require employers to provide reasonable accommodations to disabled employees unless doing so would cause an undue hardship. A typical reasonable accommodation process should be followed if such a request is made.
- Governor Polis’ Safer At Home Order (currently in effect until June 30, 2020) states that “Vulnerable Individuals” cannot be compelled to perform in-person work for any business function. “Vulnerable Individuals” are defined as persons 65 years of age and older; individuals with chronic lung disease, moderate to severe asthma, and serious heart conditions; the immunocompromised; pregnant women; and individuals determined to be high risk by a licensed healthcare provider.
About Beth Doherty Quinn
Beth Doherty Quinn has practiced law for 23 years, with an emphasis on employment and commercial litigation. She has represented clients on a wide range of litigation matters in both federal and state court. These matters include discrimination, harassment, and retaliation claims under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Family and Medical Leave Act. Ms. Doherty Quinn has been very active in the legal community. She has been a long-time member of and leader in the Colorado Women’s Bar Association, having served on its Board of Directors for seven years. She has also served on the Board of Directors of the Colorado Women’s Bar Association Foundation, serving as its President from June 2013 through June 2015. She has served on The Committee for Balanced Legal Careers, a Committee of the Colorado Bar Association. She has twice been appointed by the Mayor of Denver to serve on the Denver County Court Judicial Nominating Commission and will serve on that Commission through 2019.
If you have questions or are in need of an employment attorney, please contact Beth at 303-322-5334 or BDQ@bairdquinn.com.
Disclaimer: This material has been prepared by Baird Quinn LLC in conjunction with Doida Law Group and is for informational purposes only. It should not be relied on as a substitute for specific legal advice. This website is not an offer to represent you and is not intended to be an advertisement for legal services.