Employer Defense for Novel Coronavirus-Related Litigation

For companies in all industries, the risk of employment litigation is a very real concern during the novel coronavirus (COVID-19) pandemic. Proactive steps to mitigate this risk are essential, and companies must have strategies in place to respond to employee complaints if and when the time comes.

As the novel coronavirus pandemic continues to impact all aspects of life in America, businesses are being forced to adapt their operations in an effort to help slow the spread of the virus. From changing their business models to comply with “social distancing” guidelines to shutting their doors altogether, companies across the country have felt the effects of the virus in one way or another.

Although simply surviving during this unprecedented time is a concern for many businesses, companies cannot neglect the concern that is ultimately most important – protecting their employees’ health and safety. Failing to address employee health and safety in an employer’s coronavirus response plan will open the door to a wave of employee lawsuits, potentially wreaking havoc on a company’s public image and bottom line.

U.S. Employers Need Experienced Legal Counsel During the Novel Coronavirus (COVID-19) Pandemic

Companies need to act now to make sure they have proper policies and procedures in place to mitigate the risks of future employee complaints and litigation. Contacting an experienced employment attorney should be the first step. The attorneys at Oberheiden P.C. represent corporations and other business clients nationwide and have notable experience advising clients in all aspects of employment law compliance and litigation. Oberheiden P.C. is comprised entirely of senior attorneys and former federal agents who all have extensive experience in federal practice, and the firm’s unique team approach ensures that each client receives the full benefit of each attorneys’ collective knowledge and insights.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former Department of Justice

Brian J. Kuester

Former U.S. Attorney
Former DA

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Ray Yuen

Former Supervisory Special Agent (FBI)

Mitigating the Risk of Employment-Related Litigation with Effective Compliance Policies and Procedures

When it comes to employment-related liability risks, no industry is exempt. Hospitals, nursing homes, supermarkets, delivery services, airlines, and manufacturing companies all face potential novel coronavirus-related concerns. As a result, employers in all industries need to have in place policies that address virus-related litigation risks, and these polices must be written to address industry-specific considerations as well as state and federally-mandated employee rights. This includes, but is not limited to, rights established pursuant to legislation enacted in response to the novel coronavirus (COVID-19) pandemic.

Employers are not relieved of their obligation to afford legislative protections to their employees during the time of a global health crisis. If anything, the novel coronavirus (COVID-19) pandemic has shown that the opposite is true—in order to mitigate their risk, employers must step up and take additional measures to protect their employees. Even while companies are scrambling to change their operational structures in response to the virus, they must still adequately protect their employees against physical harm, privacy breaches and other wrongs.

The time to act is now. Employers that fail to adopt effective novel coronavirus-related employment policies and procedures significant risk financial and reputational harm. While these policies and procedures need to be custom-tailored to companies’ unique operations and risks, the following are examples of potential threats that most, if not all, companies will need to address:

• An employee is infected with the novel coronavirus (COVID-19). Among other concerns, if an employee contracts COVID-19, certain health privacy laws come into play and the employer must be aware of how to protect the employee’s right to privacy while balancing company interests.
• An employee is exposed to COVID-19 at work. CDC guidelines mandate that individuals exposed to COVID-19 self-quarantine for 14 days as they monitor any development of symptoms. Employers must effectively communicate their internal procedures for responding to possible virus exposure in order to avoid the risk of facing negligence or false imprisonment charges if they force employees to quarantine in impermissible ways.
• Employees coming into work while sick. Employers could face personal injury or other negligence claims if their employees feel they were forced to come to work while experiencing virus-related symptoms. Not having a policy in place for sick employees also puts the employer at risk of exposing healthy employees to the virus.
• Employees missing work (and pay) while out sick with the virus. Employers face potential wage-related litigation if they do not implement policies to address employee absences related to the novel coronavirus (COVID-19) pandemic.
• Discrimination related to sick employees. It is unlawful for employers to make employment-related decisions based on the fact that an employee is sick with the virus (or any other documented illness). Employers can face discrimination lawsuits under the Americans with Disabilities Act (ADA) and equivalent state laws if they take adverse employment action based on an employee’s health condition.
• Proper sanitation of employee workspaces. Federal law requires employers provide their employees with a safe and hazard-free workplace. Due to the novel coronavirus’s circulation, it is imperative that employers effectively sanitize shared workspaces, as lack of sanitation could give rise to lawsuits where employees allege they were forced to work in an unsafe environment.
• Lack of remote data security. Employers across the country are having their employees work from home during the COVID-19 crisis. However, home internet services may not provide the necessary protections for employee, client, and patient data, and employers may be at risk of violating privacy laws if they do not take the necessary precautions.
• Overtime pay. Especially in the healthcare, delivery services, and manufacturing fields, employers may need to ask their employees to work longer hours during the novel coronavirus pandemic. If companies do not have overtime pay polices in place, they risk wage-related lawsuits after the pandemic subsides.

The above list is not comprehensive in detailing all possible ways employers are at risk of future litigation, but rather is simply meant to highlight some of the most-significant risks. Having company-wide policies and procedures that address all pertinent legal risks will be critical to mitigating potential liability during and after the COVID-19 crisis.

Responding to Employee Complaints and Lawsuits During the COVID-19 Crisis

If your company is already facing threats of litigation related to the COVID-19 crisis, a swift but measured approach will be critical to avoiding unnecessary exposure. With all workplace disputes, companies need to follow certain steps in order to protect their interests while still complying with relevant employment laws. When an employee threatens a lawsuit, employers should consider the following:

• Take all allegations seriously. Do not fall into the trap of thinking an employee’s allegations lack merit.
• Contact an experienced employment attorney. An attorney who is familiar with employment law can identify critical issues regarding the allegations and advise the company about a proper defense strategy.
• Keep all documentation. Companies can face additional legal issues if they destroy or alter documents related to an employee’s allegations. Companies should also be sure to document any pertinent conversations and employment-related actions once an employee has made an allegation.
• Do not discuss the employee’s allegations with anyone except your attorney. These discussions, whether verbal or electronic, are potentially discoverable in future litigation. However, if the employee has not yet filed suit, the employer should seek to speak with employee to see if the allegations can be resolved. Again, any conversations with an employee who has initiated a complaint should be well documented.
• Review the company’s policies and procedures. Companies should have policies and procedures for how to deal with an employee complaint or allegation of wrongdoing, and they should handle employee disputes in compliance with their internal polices and based on the advice of legal counsel.
• Do not retaliate. If an employee has alleged wrongdoing and has not voluntarily resigned or quit, your company needs to be cautious when deciding whether to terminate the employee. Employers cannot fire employees simply because they filed or made a complaint. If you are planning on terminating an employee who has complained or threated litigation, it is imperative that you act under the advice of an employment attorney to ensure that the termination does not lead to additional claims.

Conducting an Internal Investigation

Companies should not sit idle while the threat of a lawsuit remains outstanding. In particular, once a company becomes aware of an employee compliant, it should promptly conduct an internal investigation. An internal investigation provides valuable insight into the potential risk associated with the employee’s complaint; and, during the course of the investigation, crucial details can be uncovered that may potentially lend themselves to a favorable pre-litigation result.

Often, if a company has a human resources (HR) department, then HR will conduct the investigation. Although this is permissible, it is recommended that an unbiased, third party conduct the internal investigation. Having a third party investigate an employee’s allegations rids the investigation of any potential bias, and engaging legal counsel to conduct the investigation will ensure the protections of the attorney-client privilege.

Speak with an Employment Law Compliance and Defense Lawyer at Oberheiden P.C.

Employers and employees alike are adjusting to the unique reality of doing business against the backdrop of the novel coronavirus (COVID-19) pandemic. While it is impossible to prepare for every scenario in this uncharted time, employers who balance the needs of their operations with the safety of their employees will experience a smoother transition back to normalcy when the pandemic subsides. If your company has not addressed employee safety due to the virus, or if your company is already facing coronavirus-related litigation, contact the experienced attorneys at Oberheiden P.C. today. Call 888-680-1745 or contact us online to schedule a free and confidential consultation.