How to avoid a COVID legal infection
Practice owners need to be careful to avoid claims over discrimination, paid leave, medical testing and harassment.
As businesses reopen across the United States amid the COVID-19 pandemic, veterinary practice owners are confronted with myriad decisions that can impact profits. Minimizing the risk from potential employee lawsuits should not be a primary consideration, but it does need to be an important part of the reopening calculus.
Returning to Work
If your clinic has been on the front lines and is looking to bring back more staff, or if your practice was closed or partly open during shelter-in-place orders, you need an objective, non-discriminatory rehiring plan unless all furloughed employees will return at the same time. Federal law forbids employment discrimination against individuals on the basis of age, race, religion, gender, sexual orientation, disability, national origin or citizenship, among other factors. Importantly, you should ignore everything you read about excluding people ages 65 or older from the workplace during the COVID-19 pandemic. Guidance from the U.S. Centers for Disease Control and Prevention is not law and can get you sued if you follow it. Many states have discrimination laws, so do some checking.
Specifically, the rehiring process should be similar to any other hiring process. You must look not only at the stated basis for recalling employees but also whether the recall will have a disparate impact on any group. Even if invited back, some employees might be hesitant to return before a vaccine is widely available. Employees also might have child care issues or be caring for an ill family member.
Employees who work remotely should be allowed to do so for as long as practicable. If a physical return to the job site is necessary, the employer should provide any requested leaves consistently. Employees fearful of infection who return from furlough might be immediately eligible for paid leave under the federal Families First Coronavirus Response Act (FFCRA). Reasonable accommodation, such as allowing them to remain furloughed for several months, might be possible.
Over the last three months, numerous federal, state and local emergency paid-leave laws were enacted with little notice to employers, and most of the laws took effect immediately or on short notice. This created a patchwork of laws that employers had to digest and implement essentially overnight. Understandably, instances of non-compliance with the technical details of each law are inevitable. Unfortunately, my firm has seen legal claims filed for unlawful denial of paid leave and for related violations.
All you can do to mitigate against risk in this area is to stay on top of federal, state and local paid-leave developments and adopt compliant policies and practices. Additionally, you would be wise to interpret any qualifying reasons liberally if you are unclear whether a paid-leave request is covered.
Employee COVID Testing
Any COVID-19 testing needs to be applied equally to all employees regardless of whether you are legally required to test employees entering your facility or just decide it’s a good idea. Make sure that certain classes of employees, such as older or disabled workers, are not singled out or required to undergo additional testing.
As far as permissible types of testing, do not automatically adopt a company-wide temperature-taking regimen. The Equal Employment Opportunity Commission has authorized it, but many states consider it a medical exam involving more stringent requirements. The generally accepted threshold for a fever is 100.4 degrees Fahrenheit, but if you decide to use forehead temperature scans, the person doing them should have a modicum of training.
Employees with viral symptoms or who fail a temperature check should be sent home to consult with their health care provider. In many states, they might be entitled to reporting time or “show up” pay. Telling employees who fail the test that they are laid off or must stay home without pay for any length of time is discriminatory and might get you sued.
Employees can and should be denied entry into the workplace if they refuse to answer screening questions or won’t submit to a temperature check. All medical information obtained from an employee and documented, including whether the person has COVID-19, must be maintained in a confidential medical file.
If applicable laws or your policies require employees to wear personal protective equipment such as masks and gloves, make sure to enforce the requirements uniformly. If an employee reports that a disability prevents him or her from wearing required protective equipment, you have a duty to reasonably accommodate the person by providing different equipment or by allowing an exception.
Wage and Hour Claims
Increased COVID-related wage and hour actions against employers is a virtual certainty. You should anticipate:
- Claims alleging that non-exempt hourly employees working remotely were not paid for all hours worked.
- Claims that employees who were temporarily furloughed and then laid off were not paid their final wages in a timely fashion.
- Claims that exempt employees had pay deductions that violated rules requiring exempt employees to generally be paid a full salary for any workweek in which they perform work.
Catching any of these claims in an internal audit conducted with counsel might help you avoid legal action.
No Joking Matter
COVID-19 provides a potentially fertile ground for bullying or inappropriate jokes in the workplace, especially if the target is Asian or is perceived to be too concerned or not concerned enough about the virus. An inappropriate meme circulated by email or a joking reference to the virus might offend an employee and can be ammunition against your practice in a harassment or discrimination lawsuit.
The return of employees to work is a good opportunity to review your employee handbook. (If you do not have one, you should.) Make sure your policies are current and conduct any needed training to combat COVID-19 issues.
Being focused on recouping your practice’s economic losses due to shelter-in-place orders is understandable. However, cutting corners with respect to returning employees from furlough could negate any gains if the result is avoidable employment litigation.
As you open your lobbies and increase veterinary services, be mindful of legal issues so that you can safely and lawfully return to the new normal.
Ashley A. Halberda is a partner in the Orange County, California, office of Carothers DiSante & Freudenberger LLP, a labor, employment and immigration defense law firm. She can be reached at [email protected] or 949-622-1661.