On August 3, 2020, the U.S. District Court for the Southern District of NY(SDNY) invalidated four key portions of the Families First Coronavirus Response Act (FFCRA), involving the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid sick Leave Act (EPSLA).  The Court ruled that the Department of Labor (DOL) exceeded their rulemaking authority regarding some aspects of the rule the DOL promulgated earlier this spring. Effective April 1, 2020, the FFCRA provides two forms of paid leave to include emergency paid sick leave (EPSL) and emergency family and medical leave (EFML) to businesses with fewer than 500 employees in the U.S. 

The court’s ruling set aside the DOL rule in four key respects, stating:

• The work-availability requirement “unduly restricts paid leave,” is inconsistent with the FFCRA, and is invalid.
• The final rule’s requirement of employer consent for intermittent leave under the EPSLA were invalidated.
• The final rule’s requirement that employees submit documentation to their employer, prior to taking FFCRA leave, that provides their reason for, duration of, and proper authority authorizing isolation or quarantine (when applicable) was invalidated. “The documentation requirements, to the extent they are a precondition to leave, cannot stand.”
• The final rule’s definition of a healthcare provider “cannot stand” because it “[e]xceeds the DOL’s authority” and is overly broad. Employers may exclude healthcare providers or emergency responders from leave benefits under the FFCRA so the final rule’s definition (that includes “employees whose roles bear no nexus whatsoever to the provision of healthcare services”) may have “grave consequences for employees” who could be unjustly denied leave benefits under the FFCRA.

It is likely that this ruling will be appealed by the DOL.  The New York court’s decision did not make clear whether its ruling applies nationwide or only to New York employers.  Thus, companies confronted with leave situations under the FFCRA should discuss their particular situation with experienced legal counsel before proceeding to grant or deny an employee’s leave request.

In the interest of public safety and to comply with local and state legal mandates, businesses are requiring customers to wear masks across the globe.  Being pro-active and putting a plan in place for non-compliance with your company’s mask requirements could help your company and your staff who have to enforce the requirement.  As part of a detailed plan to slow the spread and flatten the curve of COVID-19, the World Health Organization (WHO) and the Centers for Disease Control and Prevention (CDC) have endorsed and recommended wearing cloth face coverings or masks when employees or customers interact with one another people.

As a private business, you can have a “no shirt, no shoes, no service” policy.  Some banks have started requiring no hoodies or sunglasses policies also.  A private business can elect to have a policy of “no mask, no service” even if your locality does not mandate them.  You have the power to decide whether your business will allow visitors or customers onto your property if they are not wearing masks.

According to the CDC, some people should be exempt from wearing masks.  The CDC states: “Cloth face coverings should not be placed on young children younger than two years of age, anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the cover without assistance.”  You may have an obligation to accommodate some people, where possible, by allowing them to not wear a mask.  Please note, however, that some state public health orders do not allow you to require documentation of the medical condition. 

Mask requirements for your company should disclosed to those entering and, ideally, provided prior to the arrival of customers or visitors.  Posting notices on your website, social media platforms, apps, entrance doors and inside your business is recommended.  The notices, including on the entrance doors, should include that you reserve the right to refuse service or entry to those not in compliance with your mask requirement especially where local law requires those masks. The notice could include that those found out of compliance will be requested to put on a mask and asked to leave if they do not comply.

Employees should be trained on all health and safety measures you implement including the reason why.  These measures are for their protection as well as the protection of your customers and visitors.  Make sure your employees know the local and state requirements thoroughly.  This will help educate them and equip them in dealing with the public.  Requiring masks of employees and customers/visitors could also help your company avoid OSHA citations or other temporary state safety standards that have been implemented in response to COVID-19.

Employees should be trained on the polite way to request those out of compliance to wear a mask.  A possibility would be to clearly and calmly inquire “Our company policy is to require all visitors to wear a mask.  Can I provide one to you?”  To avoid confrontations and not engage in them, you may remind the customer/visitor of your mask rule and offer other options and alternatives such as curb side pickup, online options, or returning at another time.

Your employees should be trained in what you want them to say to those who refuse after being politely requested to wear a mask.  An example might be “If you will not wear a mask per our policy, then I have been instructed to contact my manager who will need to discuss this with you.”  Immediate involvement of a manager could avoid uncomfortable and undesirable confrontations.  If the customer/visitor becomes belligerent the company should designate a manager to speak with them in a private location who explains the policy as well as any applicable local or state ordinance regarding the use of face masks.  If they still will not comply, the manager could be asked to respectfully escort them to the exit of the private company property and let them know they will be welcome to return if they comply with the company mask policy or when the need for a mask is gone.  Physical contact is not recommended, and the manager could call the company’s security or local authorities like how you would handle a trespasser.  Documentation should be promptly created regarding the incident and provided to your HR and legal departments in case it is required at a later date.

In accordance with the Senate Bill 712 which amended the Virginia Human Rights Act (VHRA), covered employers are now required to provide reasonable accommodation for known limitations to an employee related pregnancy, childbirth, or related medical conditions, unless it creates an undue hardship to the employer.  This law is effective July 1, 2020, and specifically applies to employers who employ five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.  Reasonable accommodations are:

• more frequent or longer bathroom breaks;
• breaks to express breast milk;
• access to a private location other than a bathroom for the expression of breast milk;
• acquisition or modification of equipment or access to or modification of employee seating;
• a temporary transfer to a less strenuous or hazardous position;
• assistance with manual labor, or job restructuring;
• a modified work schedule;
• light duty assignments;
• and leave to recover from childbirth.

Undue hardships on the employer to be considered are:

• conducting business, considering the nature of operation, including composition and structure of the workforce;
• facility size and where employment occurs;
• nature and cost of the accommodation(s) needed.

In August 2019 expansions to the Illinois Human Rights Act (IHRA) included a requirement for employers to report adverse judgements, or administrative rulings regarding unlawful discrimination to the Illinois Department of Human Rights (IDHR).   The change became effective on July 1, 2020, with guidelines recently released by the IDHR listed below.

Employers must annually provide:

1. The total number of adverse judgements or administrative rulings during the preceding year;
2. Whether any equitable relief was ordered against the employer; and
3. A categorical breakdown of the total number of adverse judgements or administrative rulings, along with the names of the alleged victims of harassment or discrimination.

Key definitions regarding these reporting requirements include the following:

Employer:  any person employing one or more employees within the state of Illinois.

Adverse Judgements or Administrative Rulings:  Final and non-appealable judgements against an employer for sexual harassment, or unlawful discrimination.

Categorical Breakdown:  Employers must identify discrimination/harassment based on: age, citizenship status (in regard to employment), marital status, order of protection, race, sex, unfavorable military discharge, ancestry, color, military status, physical/mental disability, religion, sexual harassment, arrest record, familial status (with respect to real estate transactions), national origin, pregnancy, retaliation, sexual orientation/gender identity.

For answers to FAQ’s about the new requirements, please visit the IDHR link below:

https://www2.illinois.gov/dhr/Documents/FAQ_for_Employers_Under_Section%202-108_7%201%202020.pdf.

On July 22, 2020, to combat the District’s increase in coronavirus cases, Mayor Muriel Bowser signed an Order that mandates the use of masks in the District of Columbia. Effective immediately, all persons must wear a mask in common areas of apartments, condominiums, and cooperatives. Also, businesses, office buildings, and other types of establishments open to the public must post signage noting that persons may not enter unless they are wearing a mask. Businesses, office buildings, and other “establishments” are now empowered to “exclude or attempt to eject persons” who are not wearing masks or who remove their masks.  The Order  mandates that employers in the District of Columbia provide masks to their employees.

Mayor Bowser’s Order requires individuals “leaving their residence” to wear a mask “when they are likely to come into contact with another person,” including being within six feet of another person for more than a “fleeting time.” Wearing a mask is also required when operating or are a passenger in a taxi or other ride-share transportation (like Uber or Lyft), and on all other forms of public transportation (e.g., buses or the Metro). 

There are a few limited exceptions to the Order.  A mask is not required when “actually” eating, drinking, or legally smoking or if a person is engaged in vigorous outdoor exercise and is maintaining appropriate social distance. Additionally, a mask is not required if equipment required for a job precludes wearing a mask or if a person is in an enclosed office that no one else is permitted to enter. Individuals who have a medical condition or disability that prevents them from wearing a mask are also exempted. 

According to data collected by a leading law firm[1], about half (43%) of the 283 COVID-19-related lawsuits filed to date in federal and state courts were filed in the month of June. This demonstrates a recent and rapid increase in the number of claims that involve disputes between workers and employers. Looking closer at the data reveals several key takeaways for employers, which include potential liability exposure that employers should proactively address before they turn into costly lawsuits.

Case Filings Are Increasing at An Alarming Rate

Since there is limitations in tracking such cases in every courthouse in the country, the information obtained should be considered a comprehensive, but not exhaustive, dataset. The data definitely reveals a trend and offers a view into the landscape faced by employers at the current time.

Of the 283 COVID-19 lawsuits tracked, 122 of them were filed in June, which represents 43% of all known lawsuits. This shows a 30% increase from the 94 cases filed in May, and a 103% increase from the 60 cases filed in April.

Class Actions Are Also Rising Steadily

While individual lawsuits filed by a single dissatisfied employee (or ex-employee) are not the only kinds of COVID-19-related claims filed across the country. There has also been a continuous increase in the number of class action lawsuits filed as well – a 65% increase in through May 2020.

Discrimination and Work-From-Home/Leave Claims

The most frequently types of COVID-19 claims filed are employment discrimination claims and work-from-home/leave claims. Of the 63 pandemic-related discrimination claims, most resemble the classic workplace disputes wrapped in a COVID-19 context. Some examples include a gender discrimination claim where a pregnant woman claims she was furloughed due to the pandemic however was replaced by a non-pregnant individual; a disability discrimination claim where an employee was forced to reveal a medical diagnosis to justify accommodation requests and was then terminated; a sexual harassment claim where the employee claims the employer used the pandemic to terminate her employment while the true reason was that she refused her boss’s sexual advances; and a worker who was sent home with flu-like symptoms but was still terminated after a negative COVID-19 test result.

Close behind are work-from-home/employee leave claims, with 62 such lawsuits on dockets across the country as of June 30th. The stories behind these lawsuits are consistent:  such as a worker claims to not receive requested time off from work despite a legitimate need for such leave.

The complete “top five” COVID-19-related claims are:

• Employment Discrimination: 63
• Work-From-Home/Employee Leave: 62
• Retaliation: 41
• Unsafe Working Conditions/Lack of PPE: 26
• Wage and Hour: 20

Employers should train their managers so they understand their responsibilities and how employee rights might play out differently amid the current pandemic. Consistent treatment of workers and documentation remain critical.

California, Florida, And New York Are an Oasis For COVID-19 Claims

There should be no surprise that the states seeing the most claims when it comes to COVID-19-related workplace litigation are the same states that typically see the most employment-related lawsuits generally. California comes in first place in the number of overall lawsuits filed, as 47 have been filed there through June 30th. The remainder of the top five states include:

• California: 47
• Florida: 32
• New Jersey: 31
• New York: 21
• Texas: 19

Class Actions Are Focused on Safety Concerns and Wages

Meanwhile, the two most common types of COVI-19-related class action claims filed against employers are claims of unsafe working conditions (eight), and wage and hour concerns (seven).

The safety-related class actions are usually based on an allegation that the employer failed to install safety protocols, policies, or other safeguards to prevent employees from contracting COVID-19 at work. While others allege the employer failed to offer necessary personal protective equipment (PPE), failed to train them on proper usage or reimburse them for their own purchases.

[1]  See the Fisher Phillips COVID-19 Employment Litigation Tracker.