Locke Lord Offers Legal Inoculations for Potential COVID-19 Claims

Dave Moore, Staff Writer

Employers who are mapping out return-to-work strategies shouldn’t forget to immunize themselves from COVID-19-fueled litigation, lawyers from Locke Lord LLP told those who attended a Tuesday, June 2, virtual back-to-work discussion organized by the Dallas Regional Chamber and presented by Furniture Marketing Group.

“So far, what’s been emphasized in this seminar has been the importance of good hygiene practices,” said Paul G. Nason, an employment and labor law specialist in Locke Lord’s Dallas office.

“From a liability standpoint, the important thing is to make sure that you write down what your return-to-work plan is,” said Nason. “Because when it comes to potential OSHA inspections, potential workers’ compensation liability in the future, potential lawsuits in the future, the first thing any of those officials or lawyers will want to see is, ‘What was your return to work plan?’”

Key plan elements should include details on:

      • Employee health screenings for COVID-19;
      • Office hygiene practices;
      • Protocols for the use of personal protective equipment, such as masks and gloves;
      • What physical barriers have been established to prevent the spread of illness in the workspace;
      • Company policies regarding social distancing in common areas, conference rooms;
      • Company procedures for screening vendors or visitors to workplaces;
      • Business travel restrictions;
      • Company policies for removing someone who has fallen ill with COVID-19; and
      • A robust mechanism for employees who want to report workplace safety issues.

“We’re anticipating a lot of claims arising out of who gets to return to work first, and in what order,” he said. “Obviously, employers are not going to return everyone to work at the same time. An important decision is who is coming back, and in what order.”

That decision should be based on non-discriminatory reasons, such as employee skills, past performance, seniority, the critical role an employee plays, and whether an employee could do his/her job remotely, Nason said.

“From a legal liability standpoint, what you cannot do is consider employee health issues, you cannot consider whether an employee has gone on protected leave in the past, (and) you cannot consider whether employees have particular home situations that require them to devote time to be caregivers for certain people,” he said. He noted if companies or organizations need to deal with unions, returning to work is governed by collective bargaining agreements.

Another potential legal challenge employers might face could occur when employees file charges with the Equal Employment Opportunity Commission or the state equivalent, claiming that the workplace didn’t give reasonable accommodations for their requests for delaying their return to work, or terms of their return to work.

“I will say that an employee’s general fear of getting sick from COVID-19 is not a legitimate reason to refuse to return to work,” Nason said.

Other legal thoughts from Nason relating to COVID-19:

      • Personal injury cases against employers relating to individuals who claim their workplace exposed them to the virus should be covered by worker’s compensation insurance.
      • If a business or organization fails to have a COVID-19 plan, a plaintiff might use that as evidence of reckless conduct.
      • Hundreds of COVID-related complaints have been filed with OSHA, which has been slow in responding to them. The first thing OSHA will want to see is employer’s return-to-work plan.
      • Nason anticipates that there will an increase in labor union organizing activity; “workplace safety is one of the premier organizing issues that unions use to get employees to vote in favor of a union,” he said.
      • If two or more employees complain about safety or health issues, that’s considered a protected activity under the National Labor Relations Act, Nason said.

Also speaking from Locke Lord on Tuesday was the firm’s Deputy Managing Partner Whit Roberts, who encouraged those attending the meeting to visit the company’s COVID-19 microsite for more detailed information.