In early March, multiple news networks downplayed the significance of the pandemic and labeled it a “political hoax” meant to harm certain politicians in office. Now, those same networks have acknowledged that by doing so they face potential lawsuits by people who heeded this “advice.” https://www.yahoo.com/news/fox-news-reportedly-fears-early-114530961.html. Business owners now face the very real possibility that their decisions to remain open until they were shut down by the government decree put their employees in harm’s way. Here is what business owners could have done and should still do to avoid potential litigation:
1. Advise your employees to act responsibly: This is the most obvious advice, but probably the one that provides the best insulation from a lawsuit. Telling employees to be smart about how they do their jobs while using best practices to avoid contracting the virus goes a long way in showing a judge or a jury why your business is not responsible.
2. Give your employees the opportunity to work from home: This will probably be one of the biggest issues argued in the lawsuits that will be filed once the pandemic subsides. Employees will be arguing that they should have been allowed to work from home so as not to contract the virus, or, the employer’s failure to provide a safe work environment forced them to stop coming to work. Although the costs to the business of providing employees with this option may seem too large given the current economic turmoil, the alternative of having to defend multiple lawsuits with no insurance coverage may far outweighs those costs.
3. Provide updates about the steps taken to avoid spreading the virus: The manner in which this is done should be given great thought and is completely dependent upon the facts and circumstances of your business operations. First, your business should not overextend itself and promise things that it can’t delivery if they are still working in the field or office, like a ventilator for every employee. In some instances, the language itself should be such that it provides a summary of the steps taken to date and reports about the condition of the work force in a manner that does not improperly raise any alarms. If you know, for a fact, that none of your employees have contracted the virus then you can and should say so, some employees may be less inclined to file frivolous suits that are contradicted by companywide updates. In other instances, you may want to avoid any and all references to any summaries you’re not sure about the business timelines for action. In the end, the decision as to whether or not to provide updates should be given time and thought. In this regard, the Health Insurance Portability Accountability Act restricts access to individuals’ private medical information, so the name of any infected employee should remain confidential, while at the same time taking steps to inform other employees who may have recently come into contact with the infirm employee to self-isolate.
4. Do not fire anyone due to employee coronavirus related complaints: The National Labor Relations Act, 29 U.S.C. 151 et seq., provides that employees have a right to express their displeasure, even criticism, as to employer policies without the fear of repercussions such as being fired. There are, of course, limitations as to what the employee can say, however, an employer should permit employees to express their concerns without fear of retaliation. Not only does the National Labor Relations Act and federal agencies like the National Labor Relations Board protect the employee, recently announced executive orders by Governor Murphy protect employees from reprisals associated with the coronavirus. (https://www.njleg.state.nj.us/2020/Bills/A4000/3848_I1.HTM). The point is, if you are going to terminate an employee, it should be for cause associated with dereliction of duties, poor performance, etc. Make sure it is documented.
5. Consult with an attorney when you are unsure of what action to take: This should go without saying, unfortunately, though an ounce of prevention is worth a pound of cure, employers too often take action without talking to an employment attorney beforehand. Wrongful termination suits may not be covered by insurance, forcing the company to independently hire an attorney that can cost tens of thousands of dollars to defend. An experienced attorney can readily assist in providing the proper documentation to support your position, a forward looking approach that can potentially dissuade an employee from taking action when there is no evidence to support their position.
It is also important to preserve the documentation, or summarize conversations with employees, to prevent a ‘he said/he said’ situation.
The information provided in this article does not constitute legal advice and cannot be substituted for same, nor does it create an attorney-client relationship.
Michael Orozco is an attorney with Price, Meese, Shulman & D’Arminio, PC, contact him at (201) 391 3737 ext. 123, or via email at morozco@pricemeese.com.
