Even though the idea has been in the news recently, at the current time there is no absolute liability immunity for Texas employers from COVID-19-related claims made by employees who are exposed to the virus in your workplace or otherwise harmed during the pandemic. You can be sued for many different legal failures as an employer during this crisis, so you should know what the law expects of you right now.
The law firm of Fisher Phillips is maintaining a fascinating database of COVID-19-related cases filed so far in 2020. Their database shows that 38 COVID lawsuits have been filed in Texas for claims such as unsafe workplaces, discrimination, paid leave violations, retaliation and even wrongful death. I have no doubt those claims will continue to increase as employers struggle with all of the safety guidance and other rules burying them during this crisis.
I’ve narrowed the possibilities of a Texas employer getting sued during this global pandemic down to these ten mistakes:
- Fail to properly pay for absences under the Families First Coronavirus Response Act (“FFCRA”): Employers of 500 employees or less are required to provide their employees with two weeks of emergency paid sick leave for coronavirus-related absences. In addition, FFCRA requires an additional 10 weeks of emergency paid family leave if (and only if) an employee has to miss work because his/her school-age child’s school has been closed or the child has been quarantined and there is no one else to care for the child. Failure to understand and pay this leave correctly can result in a Department of Labor investigation and/or an employee lawsuit for discrimination or retaliation.
- Violate the rights of the disabled and ill under the Americans with Disabilities Act (“ADA”): Certain employees who have pre-existing disabilities such as diabetes, heart problems, cancer, etc. are protected by the ADA and also owed reasonable accommodations to allow those employees to continue working. Add to that the ADA responsibility that the employer now has to accommodate current COVID-19 sufferers and the longer-term chronic illnesses that COVID-19 has created in some that have survived the virus. An employer with at least 15 employees can be sued for disability discrimination if the employer fails to work with and communicate clearly with an employee who needs adjustments to working conditions, schedules, absences, etc. to allow the employee to perform the essential functions of the job during the pandemic.
- Fail to keep your employees safe in violation of the Occupational Safety and Health Administration (“OSHA”): All employers regardless of number of employees have a general legal duty to provide employees with a safe workplace. That is a obviously a moving target right now, but every employer must do the work to stay up to date on what keeping employees safe during a pandemic looks like. While you are not expected to be an epidemiologist, the federal and state government have pushed all of the burden of being the pandemic police onto small businesses. That means that an employer must at least frequently check the OSHA COVID updates and the CDC business updates to understand what the government requires for keeping employees safe in the workplace, including enforcing social distancing, mandating face masks, putting up partitions, increasing ventilation or taking other steps to keep your employees safe (and help them perceive that they are safe through education, clear communication and willingness to listen to their suggestions). Also, you must inform your employees (while protecting a specific employee’s medical privacy rights) of exposure among fellow employees so your workers can be tested and protect their families and others that they are near. Failure to fulfill the duty of safety can mean governmental inspections and penalties as well as employee lawsuits for gross negligence.
- Expose an employee to the coronavirus at work, so that the employee claims Worker’s Compensation benefits: Texas worker’s compensation policies cover both injuries sustained on the job and occupational illnesses. If an employee can show that there was a high likelihood that COVID-19 was contracted on the job because of direct exposure in the workplace or because the employee is in an occupation that is now at high risk (healthcare worker, grocery store worker, teachers as schools reopen), then a case could be made that the employee is entitled to have the medical treatments and lost income covered by worker’s compensation insurance. That the illness was occupational is not easy to prove because it is difficult to pinpoint where the exposure occurred, but a big outbreak in your workplace and a failure by you to take reasonable precautions could make proving probable cause much easier. The good news is that worker’s compensation is an exclusive remedy, so that if an employee succeeds on a worker’s compensation claim, the insurer pays the claim and that same employee is barred from also suing you for more money than the worker’s compensation system provides.
- Fail to keep employees safe and when one dies, you as the employer can be sued for wrongful death. In order to avoid the caps on monetary damages under the worker’s compensation system, plaintiffs’ lawyers seeking bigger jury awards may forego worker’s compensation claims and go to court to claim that an employee suffered a wrongful death from COVID-19 after being exposed at work. This requires that a deceased employee’s family demonstrate gross negligence by the employer. Some of these suits have already been filed, including one against the Tyson plant in Amarillo on behalf of the family of a deceased Tyson employee, Pwar Gay, in which it is alleged that Tyson failed to provide her with proper PPE and other COVID-19 safety measures. For those employers who do not carry worker’s compensation insurance at all, the family of a deceased employee will have a much easier time prosecuting a wrongful death suit because of the legal penalties imposed on non-subscribing employers.
- Pay your employees incorrectly in violation of the Fair Labor Standards Act (“FLSA”): The U.S. Department of Labor has answered some FAQs about paying your employees in compliance with the FLSA (the law requiring overtime and minimum wage) during the pandemic. These FAQs are important for employers to review. For example, one FAQ clarifies that if you send employees home to work, you must either provide the equipment for them to work on or assure that the cost of acquiring that equipment doesn’t cause your employee to make less than minimum wage. What about those employees who start and stop work several times during the teleworking day to help children or run errands? Do you have to pay them for the whole day? The FAQs answer these and other questions. Failure to follow the DOL’s instructions on these compensation matters can result in an expensive wage and hour audit or an employee suit for violating the employee’s compensation rights under the FLSA.
- Firing an employee for missing work when the employee was eligible for Family and Medical leave (“FMLA”): If you employ at least 50 workers, you know your company is subject to the requirements of the FMLA. But administering the FMLA is tricky during a pandemic. You have to coordinate the FMLA’s unpaid leave provisions with the FFCRA’s paid leave requirements. You have to allow employees to stay home to take care of a sick family member even if the employee is not ill, but you don’t have to allow a fearful employee to stay home to avoid getting sick. An employee whose FMLA rights are violated can sue an employer for back pay, front pay, liquidated damages and attorney’s fees.
- Discrimination against older employees who may be especially vulnerable to COVID-19: Even though employees age 65+ are most at risk, an employer cannot exclude older workers from performing their jobs, even out of concern for the older workers’ health. Additionally, an employer cannot revoke a job offer or otherwise discriminate against an older worker to avoid the risk of that employee getting ill with the coronavirus in the workplace, even in a job that could be high risk. The Equal Employment Opportunity Commission has already identified these types of situations as discriminatory, so a Texas employer with at least 15 employees who makes these mistakes could face a charge of discrimination filed by the employee with the EEOC or Texas Workforce Commission.
- Retaliate for employee complaints in violation of the National Labor Relations Act (“NLRA”): Employees have a right to talk together and even complain together about their employer, even online in social media, when they perceive their working conditions are not ideal. The NLRA applies even in non-union workplaces. So if you as an employer have two or more employees who are complaining about how you are not protecting them from COVID-19 because coworkers aren’t wearing masks, or your cubicles don’t allow for social distancing, or you won’t let an employee work from home anymore, you cannot discipline or fire those employees without possibly violating the NLRA, thereby finding yourself in an unfair labor practices lawsuit.
- Automatically defer the employee’s Social Security taxes out of paychecks in response to President Trump’s Executive Order: The President signed a vague order on August 8 allowing employees to defer payment of the employee portion of their Social Security taxes (6.2%) beginning on September 1 and continuing through the end of the year. So for an employee making $60,000 per year, that could result in $1240 total savings to the employee over those 4 months. However, there is a big catch. At the present time, those taxes are only deferred, not forgiven. Therefore, the employee will still owe those taxes in 2021, as things stand right now. It is crucial that the employee understand his/her future tax liability. Treasury Secretary Mnuchin said this week that it is not mandatory for an employer to defer these taxes and it is not mandatory that an employee choose to defer these taxes. So you can give employees the option to voluntarily defer these taxes, but you must get that election in writing with the employee’s acknowledgment that those taxes may eventually still be owed even if not withheld from the next four months of paychecks.
These are difficult legal obstacles that you face as an employer during this pandemic. The best advice I have is to make your workplace as safe from the virus as possible. Also, check with an employment lawyer before you change an employee’s pay or working conditions in response to COVID-19. And always talk to your lawyer before you take any adverse employment action, like a termination, against an employee.