The Best Practices for Avoiding COVID Litigation at Your Company

By Trisha R. Hudkins, Associate
Bernstein-Burkley, P.C.

Across the country, there have been many types of lawsuits filed related to COVID-19 health risks and employers’ reactions to the pandemic. These suits affect a wealth of industries, but more often than not, they hit sectors like healthcare, manufacturers, and retail.

If you are a business owner with plans to transition back into the workplace, there are some things you need to consider when it comes to side-stepping a lawsuit.

Stay up-to-date on information.

As an employer, you must base your decisions on reliable information and continue to monitor the changing situation with respect to the workplace. You should begin by following the guidelines from the leading health authorities, including CDC Guidance for Businesses and Employers; Pandemic Preparedness in the Workplace and ADA; and OSHA’s COVID-19 Overview and Resources for Preventing Workplace Exposure.

Prepare a back-to-work plan.

Survey your employees to get a sense of their feelings on returning to work and also prepare yourself for the possibility that some employees will continue to work from home. For people who do return, strategize about how social distancing will work, hand-sanitizing station locations, and what kind of preventative barriers will be put in the office. Many of the suits that are being filed right now have to do with employers violating workplace safety laws and protocols, with claims involving failure for employers to provide personal protective equipment and to carry out policies like temperature checks when employees arrive for work.

Create a checklist of things that need to be addressed.

Implementing the following procedures would be prudent:

  • Disseminate current resources and information to workforce;
  • Avoid workplace discrimination or harassment based on cultural biases or racial perceptions that particular workers are more likely to be exposed to or infected with COVID-19;
  • Establish leave administration and accommodation guidelines;
  • Require employees to take preventative measures;
  • Take the most conservative approach in returning work—assess ongoing teleworking as appropriate;
  • Establish travel guidelines—consider whether to restrict business travel into high-risk areas defined by the CDC or impose broader restrictions;
  • Establish protocol for exposure and sickness.

Become familiar with recent legislation put into place.

Under FFCRA (Families First Coronavirus Response Act), coverage includes certain public employers and private employers with fewer than 500 employees. Most government employees are not covered by this act because they are covered by the Title II of the Family and Medical Leave Act, which was not amended by FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

The FFCRA provides eligibility for employees that includes:

  • Two weeks (up to 80 hours) of paid sick leave if the employee is unable to work because they are quarantined and/or are experiencing COVID-19 symptoms or are waiting on a diagnosis;
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because an employee has to take care of an individual subject to quarantine or care for a child under the age of 18 whose school or child care provider is closed or unavailable due to COVID-19 or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor;
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if an employee (employed for at least 30 calendar days) is unable to work because a child whose school or child care provider is closed related to reasons involving COVID-19
  • Right now, many lawsuits against businesses are dealing with leave claims, with employees being denied sick leave or medical leave related to the pandemic.

Contact Bernstein-Burkley, P.C.

Bernstein-Burkley, P.C., recognizes the impact litigation can have on a business. Our litigators are trial-ready but frequently resolve commercial litigation in lieu of trial. To reach out to our litigation team, call (412) 456-8100 or contact us at (412) 456-8110.

Written by Bernstein- Burkley, P.C. on August 3, 2020

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