Ed. Note:: This is the latest in a series on changing legal practice and the second on employment. Click here for the first.
As the first anniversary of the worst public health crisis in living memory approaches, companies are turning to their labor and labor lawyers to deal with an ever-evolving array of issues.
At the top of the list is probably the rise of the work-at-home employee.
“One of the big questions for 2021 and beyond is how much telework will be left here,” said Nicholas M. Reiter, partner and co-chair of the work and employment group at Venable LLP in New York. “What happens if an employee insists on doing their work remotely? We’ll see what happens as the vaccine becomes more widely available, the infection rate slows, and employers urge employees to get back to work. “
Gabrielle Wirth, a partner in Dorsey & Whitney LLP’s California and Montana offices, shares Reiter’s concern.
In a webinar her company held on COVID-19 liability, Wirth noted, “With many, many employees working remotely, it will be more difficult to claim that you cannot work remotely if the employees have worked successfully [that way] for a year.”
Of course, it’s a different story for major companies where workers have had to be on-site all the time, “but the whole environment has now changed as to whether or not a reasonable accommodation for a disability would be the provision of remote work”. Said Wirth.
Teleworking can also drag employers into a thicket of reimbursement problems.
“An employee may need to use their own computer and internet,” said Wirth. “You may be exclusively on cell phones and your cell phone bill is now. . . 100% attributable to the employer. “
While not all states require companies to reimburse their employees, California, Illinois and other countries do, Wirth said. These expenses can include something as obvious as office supplies for mileage for job-related errands, such as running away. B. Trips to the post office.“This is very common,” said Wirth, “claiming not to have reimbursed the costs.”
Wirth also said she saw a lot of wage and hourly claims, although it didn’t necessarily have to do with teleworking. For example, she has seen complaints of non-payment of wages for the extra hours employees spend on security checks such as temperature checks.
Litigation over employers’ failure to take paid sick leave was as common as litigation related to the Extended Medical Family Leave Act, a federal law of 2020, according to Wirth.
“Many employers had no guidelines,” said Wirth. “Now that we are in a voluntary phase under federal law, this has become a state-to-state issue. Many states have extended this paid vacation until 2021. “
She also pointed out that local authorities may have ordinances on “how much vacation to give for COVID-related exposure”. Businesses may need to contact labor and employment attorneys to revise their policies and ensure they are complying with applicable laws.
According to written records from the Dorsey & Whitney COVID Liability Webinar, healthcare providers are facing particularly acute difficulties related to employee vacation. The company proposed “put in place a system to record employee vacation requests and the reasons for those requests, that is, an employee’s symptoms and the date for a test or doctor’s appointment.”
Like all employers, health care providers must avoid human resource interventions that can trigger discrimination or retaliation lawsuits from employees who have applied for or used COVID-related time off. “As always,” the materials say, “vendors should properly document their termination decisions.”
Of course, the companies had to comply with the federal economic stimulus programs and new holiday rules.
“We have advised many of our customers on questions of wage protection,” said Reiter. “We have worked very closely with our Legislative and Government Affairs departments to advise our clients on eligibility for salary protection funding and to be more proactive in what they will do to ensure they continue to be eligible.”
According to Wirth, probably the most difficult situation for employers with regard to the vaccine is their duty to accept two groups of people.
The first group includes people with a medical condition or disability that makes the vaccine unsafe and the second group includes people who refuse to take the vaccine for other reasons.
For employers who want to make vaccination a condition of employment, Wirth recommends carrying out interactive processes with the two groups. Openness and documentation are the key.
“When someone has a medical reason, not only do you have to go through the interactive process, you have to take other steps, including [to examine alternatives] To have someone in the office, ”said Wirth.
With regard to the non-medical vaccine objectors, Wirth advises that termination may not be required.
“Just because you won’t let her come back to work doesn’t mean you have to fire her,” she said. “Because this vaccine came about so quickly, people are suspicious. It was an emergency permit, not the normal FDA procedure. One of the things you can do is let them go on vacation, which is family vacation while all the evidence is in place for how well the vaccine is working. ”
Douglas S. Lang, former appellate judge and attorney at Dorsey & Whitney’s Dallas office, said during the webinar that employers must adequately consider people with religious objections to the vaccine – “and that must be a real ethical or moral belief, not just one’s political beliefs. “
However, Lang would not rule out that these people also have to be taken into account. His colleague Shevon DB Rockett, a partner in the Dorsey & Whitney offices in New York and Philadelphia, said at the webinar that employers and their lawyers should consider whether personal and political preferences regarding the vaccine need to be considered.
“The short answer is, if you refuse to take the vaccine for personal reasons, you can cancel,” Rockett said, although the statement has limitations.
“In some states, such as New York,” Rockett continued, “employees have the right to speak freely and get involved in politics.”
This means that debates over civil liberties and vaccine mandates are on the horizon. Vaccine denial could very well become a protected political activity.
“That’s the nuance we’re all looking at, and we’ll see how that plays out in the coming weeks,” said Rockett.
Employers can potentially protect themselves from harassment claims or a hostile workplace by establishing clear protocols and ensuring that they are consistently enforced.
“Of course anyone can make a claim,” said Rockett. “But it will be much more difficult to succeed in this claim if [the employer shows] This means that people who are not taking the vaccine are in a position where the vaccine is needed for safety reasons and that there is no other shelter. “
One thing is certain: the fact that labor law and civil liberties overlap with the COVID vaccine illustrates the complexity of the problems. Employment lawyers may resort to many areas of the law to adequately serve their clients.
“We have a great practice at Venable with a lot of resources,” said Reiter. “That’s the beauty of a full-service company.”
“Unprecedented” is sponsored by the Practicing Law Institute, which offers a variety of timely offers on labor law topics. These include the Understanding Employment Law 2021 and Employment Discrimination Law & Litigation 2021 programs, as well as the publications “COVID-19 and Other Pandemics: Business and Legal Challenges” and “Employment Law Yearbook 2020”.
Elizabeth M. Bennett was a business reporter who switched to legal journalism while covering the Delaware courts, a blow that inspired her to study law. After spending a few years practicing law in the Philadelphia area, she retired to the Pacific Northwest and returned to freelance reporting and editing.