Coronavirus Disease 2019
The CDC has released guidelines for employers on how to deal with the likely outbreak of “COVID-19” in the US.
There are, however, legal as well as medical concerns involved with such a situation. While the EEOC has stated that employers may send workers home if they exhibit flu-like symptoms during a pandemic, employers should be careful in what they say.
Privacy and defamation claims may be brought by an employee if the employer states or implies that the employee is infected with COVID-19.
In addition, employers must adhere to all applicable leave laws, such as the Family and Medical Leave Act (FMLA) and related state laws such as the Oregon Family Leave Act.
Exit Bag Searches
Earlier this month, the California Supreme Court ruled that state law requires time spent by Apple employees waiting for and undergoing searches of their bags when they leave work to be paid.
Apple argued that the security check time was optional because employees could avoid bringing any personal items to work, but the court pointed out that some employees were prohibited from wearing their company branded uniforms except while at work and so had no choice.
In addition, employees were subject to discipline, up to and including termination, for failing to comply with the policy if they did bring personal items to work.
New Form I-9
US Citizenship and Immigration Services recently published a new version of the I-9 form. Employers can use the prior version of the form until April 30, 2020, but after that, must use the new version dated 10/21/2019.
Retaliation Claims
The Equal Opportunity Employment Commission (EEOC) recently shared its 2019 enforcement statistics. More than half of the complaints it received last year made claims of retaliation.
Because retaliation claims are the most commonly filed, employers should check their employee handbooks and other policies and procedures to ensure that retaliation is adequately covered. They should also implement appropriate training of all supervisors and managers.
Generally speaking, retaliation is when an employer takes an adverse employment action against an employee because that employee engages in some type of protected activity.
Examples are firing an employee who has complained of sexual harassment or giving a poor review to an employee who refuses to follow an order to enforce a discriminatory rule such as a prohibition against the wearing of hijabs at work.
Employers are free to discipline and fire workers who have engaged in protected conduct, but only for non-retaliatory and non-discriminatory reasons that would normally result in such consequences, even without the protected conduct.
Unfortunately, retaliation claims are sometimes filed because an employer took a legitimate adverse employment action after the employee engaged in protected conduct, making it appear that the adverse action was a result of the protected conduct.
For this reason and others, it is important for employers to properly document any problems with their employees’ attendance, performance and the like, and to make sure that employees are given adequate notice of those problems when appropriate.
Please feel free to contact us if you, as an employer or employee, have any questions about employment law or if you need assistance in drafting or interpreting an employee handbook or other employment policy.
Photo by Hello I’m Nik on Unsplash
