Employer Defense Against COVID-19 Related Lawsuits

The spread of the COVID-19 virus has brought about a whole range of significant consequences for our society. Throughout the State of Florida and the rest of the country, we’ve seen substantial damage to the economy, and large numbers of people lose their lives as a result of the virus. As we grieve for all the suffering which has been wrought by the pandemic, we also have to take the necessary steps to ensure that as little suffering as possible happens in the future. Employers, in particular, need to understand the things they can do to minimize the potential negative impact of the virus. In this post, we will discuss the steps employer can take to guard against potential lawsuits stemming from COVID-19. Employers should learn these defenses carefully so that they have a precautionary measure.

Step #1: Protect Against Racial and Health-Based Discrimination

Sadly, because COVID-19 ostensibly originated in Wuhan, China, many people, including Donald Trump, have referred to COVID-19 as the “Chinese Virus.” Others have classified the virus in similarly offensive ways, such as “Kung Flu.” As an employer, you have an obligation to provide a workplace which is free from discrimination and harassment. Take time to remind all your employees that your workplace will not tolerate any sort of ethnic or racial discrimination or harassment.

In addition to anti-discrimination and harassment issues related to ethnicity or race, be careful to inform your employees about your stance on discrimination and harassment based on health status. If an employer has an employee who contracted the virus, and recovers, that employee may be at risk of discrimination or harassment by other employees. Make it clear to your employees that this type of behavior will not be tolerated.

Step #2: Protect Against Workplace Safety Allegations

The Occupational Safety & Health Act of 1970 (OSHA) places certain safety burdens on employers. Although the standard of OSHA is fairly high, employers are not at a high risk of being sued if an employee contracts the coronavirus on site. However, employers may be at risk of a successful suit under the OSHA if they fail to implement certain safety and precautionary measures. For one thing, this means being sure to comply strictly to all local governmental regulations regarding social distancing, masks, and so forth. In addition, you may want to go above and beyond governmental regulations in order to protect yourself further. This can involve distributing educational material about the virus, putting up additional cautionary signage, and so on.

In addition to protecting yourself against safety lawsuits, you also need to keep in mind that you are forbidden to retaliate against employees who file OSHA claims. If an employee files an OSHA claim and alleges inadequate workplace safety, you cannot retaliate in any way against that employee in the future. If you retaliate, you risk running afoul of federal law and incurring serious repercussions.

Step #4: Protect Against Layoff / Furlough Discrimination Claims

The COVID-19 crisis has caused many employers to temporarily (or permanently) layoff employees. Even though these temporary or permanent layoffs may be the result of the coronavirus, this doesn’t prevent the possibility of employees filing unlawful discrimination claims. In other words, even if you seemingly let someone go because of safety concerns, that employee can still potentially file a discrimination claim based on the circumstances. What this means is that you need to be extremely cautious when you let anyone go, even if you wholeheartedly believe that nothing unlawful has happened. If an employee can point to negative impact which disproportionately falls on people of “protected classes,” then a lawsuit could ensue, even if no intentional discrimination occurred. As an employer, you want to prevent any sort of claims, and so you want to make sure that no such pattern has occurred.

Reach Out to Trembly Law for More Information

These are just a few concerns which employers should be sure to think about in the wake of the coronavirus. If employers take steps to address these concerns, they should be able to prevent lawsuits, and also prepare defenses against any claims which happen down the line. If you would like additional information, or if you need assistance with a case, give the Trembly Law Firm a call today at 305-985-4580.

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