COVID-19 Legal Update: Reducing Employment Litigation Risks

The more things change, the more they stay the same. Even in this strange new world of a COVID-19 pandemic and stay-at-home orders, some things look very familiar. Employers and employees often disagree. Employees can and do sue employers. As things change, some employees already are suing their employers under the Families First Coronavirus Response Act. This article will discuss what employers should be doing now to minimize the chances they will be sued under the FFCRA. 

We explained earlier that the Act requires many employers to provide paid leave to employees who need time off because of the coronavirus pandemic. In addition to its paid sick time and family leave provisions, the Act enables employees to sue their employers and managers and supervisors in their individual capacities for a variety of reasons, including wrongful denial of leave, termination or other retaliation based on an employee's request for leave or other protected activity under the Act. The Act combines this broad coverage with the Fair Labor Standards Act's robust remedies, namely the amount of paid leave wrongfully denied, lost wages and benefits, potential attorneys fees and liquidated damages. The FFCRA requires virtually no administrative exhaustion, so employers can expect that lawsuits may arise quickly and in substantial numbers.[1]

Less than a month after the Act became law, litigation has begun. In Jones v. Eastern Airlines, a former executive alleges that Eastern Airlines retaliated and discriminated against her for requesting leave to care for her son, whose school closed as a result of the coronavirus. Jones seeks to be reinstated to her former position and to recover lost wages and benefits. This case offers employers a window into both future litigation likely to arise under the FFCRA and some of the best ways to avoid it. 

Employers should be wary of risk under the FFCRA in any of these increasingly common situations: 

• When denying an employee's request for leave or granting a modified version of the requested leave, particularly when the request involves the need to care for a child;
• When reducing pay for an employee who has recently requested or taken leave under the Act;
• When furloughing, laying off or terminating an employee who has previously requested or taken leave under the Act;
• When handling an employee's request for accommodation upon his or her return to work following recovery from COVID-19 or based on a pre-existing disability exacerbated by or giving rise to increased health risks arising from the COVID-19 pandemic; or
• When informing an employee that he or she cannot resume the same or an equivalent position upon returning to work.

Depending on circumstances, an employer's response to a request for leave under the Act may implicate other federal anti-discrimination laws, including Title VII or the Americans with Disabilities Act.

Risk of litigation never can be eliminated. To avoid or at least mitigate the risk of FFCRA litigation, however, employers should implement the following practices, procedures and policies.

Document decisions relating to terminations, layoffs, furloughs, reductions in pay and the like. Employers must have solid documentation of the bases for their decisions. If a company needs to reduce salaries or lay off employees as a result of economic conditions created by the COVID-19 pandemic, those conditions need to be documented. Employers also should consider documenting all of the employees or groups of employees considered for salary or hours reductions, terminations, lay-offs, furloughs or the like. Such documentation can demonstrate that employees who did not request or take leave under the Act were considered for and subject to the same employment actions as those who did request or take leave. Even if an employer typically does not provide written notices of termination, consider implementing a practice of providing written notice now. Solid documentation of the non-retaliatory reasons behind an employer's decisions during the pandemic will be the best evidence of compliance with the Act.

Designate one individual or a limited group of individuals to receive and respond to leave requests under the Act. Employers need to make decisions about requests for leave under the Act as consistently as possible. Employers also need to communicate their responses to leave requests consistently and in a manner that will be helpful in the event of future litigation. Making one person or a limited group of people responsible for reviewing and responding to requests for leave under the Act minimizes the chances of wrongfully denying leave or sending a poorly worded email response to a leave request that could later appear as evidence in a lawsuit. 

Those responsible for evaluating and responding to leave requests should document all requests and responses, including by maintaining records reflecting the length of and basis for the requested leave under the Act; documentation of any quarantine or isolation order, relevant medical advice or diagnosis, or school closure or childcare unavailability; employee statements that he or she is experiencing coronavirus symptoms and seeking diagnosis; the employer's decision on each leave request; and how the employer determined the amount of wages owed during an employee's paid leave. If properly recorded and maintained, this documentation can reduce the risk of litigation under the Act. This documentation is also required for employers to receive the tax credits available to cover the expense of paid leave provided under the FFCRA.

Educate managers, supervisors and others in positions of authority about the Act's provisions. While not every manager, supervisor or executive should be responsible for receiving or responding to leave requests, they should be generally aware of the Act's provisions. In particular, decision-makers need to know the types of leave available under the Act and whom within the company will review and respond to such requests. This knowledge allows managers and supervisors to direct employees to the appropriate person within the company when they hear the "buzzwords" that signal a request for protected leave or otherwise become aware of an employee's need for leave under the Act.

To the extent possible, be flexible when responding to leave requests. The Department of Labor and Equal Employment Opportunity Commission are encouraging employers to be flexible in responding to requests for leave and requests for accommodation in the workplace or upon return to work. Flexibility may run the gamut of: (i) permitting an employee normally required to be on-site to telework or to perform certain tasks remotely; to (ii) allowing an employee to use intermittent leave on an hourly basis to care for a child whose school or place of care has been closed; to (iii) modifying an employee's work schedule to minimize contact with the public or other employees. The Americans with Disabilities Act generally will govern employees' requests for accommodation. As usual, employers are not required to provide the requested accommodation if it poses an undue hardship. The Equal Employment Opportunity Commission has advised that the undue hardship analysis takes into account circumstances — including economic circumstances — created by the COVID-19 pandemic.

Continue to follow the Department of Labor's evolving guidance to employers. The Department of Labor provides and updates guidance to employers on a "Frequently Asked Questions" page. The Equal Employment Opportunity Commission also publishes guidance on various topics, including the intersection between the COVID-19 pandemic, the Americans with Disabilities Act and other federal employment legislation.

Finally, please contact a member of our Employment and Labor Practice Group. We are frequently advising employers regarding compliance with the Act and policies and procedures related to the coronavirus pandemic. 

[1] The FFCRA only requires employees to contact the Department of Labor's Wage and Hour Division before filing suit when pursuing claims against employers with fewer than 50 employees based on a failure to provide family and medical leave to care for a child whose school or place of care has closed because of the coronavirus.