A common question posed to me this past week was what types of lawsuits should employers be concerned about once the economy begins to reopen. I figured that the California economy is slowly reopening, so I should start writing my Friday’s Five lists again – so here are the top five areas of concern I see for California employers post-coronavirus:
1. Leave issues
There are a patchwork of paid leave laws that California employers must be very careful in navigating. For example, here are a few federal, state and local leave laws that could apply to an employer in Los Angeles:
- Families First Coronavirus Response Act (FFCRA) (more information can be read here)
- California Supplemental Sick Leave – Food Service Workers (more information can be read here)
- City of Los Angeles Supplemental Sick Leave (more information can be read here)
- Don’t forget California Healthy Workplace Healthy Family Act and local paid sick leave laws as well.
2. Retaliation claims
Labor Code section 1102.5 protects employees against retaliation for disclosing information, or because an employer believes an employee has disclosed information, to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct a violation where an employee reasonably believes that the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. The key item to understand here is that the employee only had to have a reasonable belief that the disclosure discloses a violation of federal, state or local law or regulation.
3. OSHA/Cal-OSHA/EEOC/DFEH worksite investigations
Employers must comply with requirements to provide safe work environments:
- OSHA: https://www.osha.gov/SLTC/covid-19/controlprevention.html
- Cal-OSHA guidance on requirements to protect workers from coronavirus: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html
OSHA provided revised guidelines on May 19, 2020 setting forth the following requirements for recording of COVID-19 workplace cases:
OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:
Also, remember to have your Injury and Illness Prevention Program (IIPP) in place.
4. Wage and hour issues
The following wage and hour issues could be common types of claims following the recovery from the coronavirus pandemic:
- Expense reimbursement for PPE, cell phones, home internet, etc.
- Meal and rest break violations
- Reporting time pay claims
5. Disability discrimination/reasonable accommodations
Fair Employment and Housing Act (FEHA) provides it is unlawful to discriminate against an employee on the basis of “physical disability.” (Gov. Code, § 12940, subd. (a).) In addition to making it illegal to discriminate on the basis of disability, the FEHA makes it unlawful “to fail to make reasonable accommodation for the known physical . . . disability of an . . . employee.” (§ 12940, subd. (m)(1).) Finally, the FEHA prohibits an employer from harassing an employee “because of . . . physical disability.” (§ 12940, subd. (j)(1).) Employers must consider reasonable accommodations for high risk employees, such as for employee with underlying impairments, 65 years old or older, possibly for pregnancy-related impairments. A reasonable accommodation is not require if employee is simply afraid to return to work, is on unemployment, or who is caring for someone else who is at high risk (but be careful on this issues, as it could trigger other leave laws, such as California’s paid sick leave laws or the FFCRA).