Potential Employment Law Issues Arising From the COVID-19 Pandemic (Part II)

May 28, 2020

By: Stephen B. Stern

This is another article in the series of articles we have posted regarding legal issues that businesses of all sizes should consider when navigating shelter-in-place orders during the COVID-19 pandemic and as they prepare for the “reopening” of the economy.  As companies try to adjust to the COVID-19 business environment, there are many areas of employment law that present potential liability for companies.  This is our second article specifically devoted to identifying and describing a number of employment law issues that may arise from the COVID-19 pandemic (see the first COVID-19 employment law article dated May 11, 2020 here).

•    ADA Compliance and Job Description Updates:  As companies try to implement safety measures related to COVID-19, they should be mindful of the guidance issued by the EEOC regarding COVID-19.  For example, the EEOC has taken the position that it is not a violation of the Americans with Disabilities Act (“ADA”) if an employer asks employees about specific symptoms that are consistent with COVID-19, and employers may even take employees’ body temperatures (even though taking an employee’s temperature typically constitutes a medical inquiry).  Also by way of example, employers may administer COVID-19 tests because any employee testing positive and entering the workplace would pose a direct threat to the health and safety of others.  Despite the latitude given to employers in this regard, the EEOC also advised employers to keep up to date with CDC and other authorities’ guidance, as symptoms and other information about COVID-19 may change, which in turn may alter the scope of permissible and impermissible activity under the ADA.  These are merely examples of the types of guidance issued by the EEOC on matters related to COVID-19.  Another ADA issue involves telecommuting.  Many employees in recent years have requested telecommuting as a reasonable accommodation under the ADA.  Although technology has been available to allow telecommuting for some time, courts generally have shown deference to employer determinations that physical presence in the workplace is an essential function of many jobs.  COVID-19 and the associated shelter-in-place orders, however, have required many businesses to operate remotely.  It is unclear whether courts will rely on this period of telecommuting to find that physical presence in the workplace is not an essential function of jobs that previously were deemed to require physical presence in the workplace.  For example, although jobs are being performed remotely, many companies also have been reporting anecdotally that they are experiencing inefficiencies and underutilization with respect to employee performance.  If that is the case, such analyses may be relevant to determining whether physical presence in the workplace is an essential job function.  These will be fact-intensive determinations and companies may want to evaluate whether job descriptions may need to be updated to account for these circumstances.

•    Discrimination Claims Generally:  Some administrative agencies are reporting large numbers of discrimination claims being COVID-19 related.  For example, approximately 30% of the new cases filed with the Maryland Commission on Civil Rights have been classified as related to COVID-19.  During this new pandemic work environment, which has had a dramatic effect on the economy, employers are having to make adverse employment decisions regarding their employees.  It is important that companies remain vigilant to remove any potential discriminatory animus when making decisions about layoffs, furloughs, pay cuts, hiring or rehiring employees, and other employment decisions.  Decisions should be based on legitimate, nondiscriminatory criteria to avoid having an employee who has endured an adverse employment action from arguing that COVID-19 was merely used by the employer as a pretext for discrimination.  Employers also should remind employees that they must be mindful of their conduct and comments while participating in any type of work-related video calls.  Although opportunities for employees to make discriminatory comments to one another appear to have lessened to some extent with so many employees telecommuting now, employers remain at risk for a variety of discrimination claims in the new remote workplace.  For example, in an effort to try to elevate camaraderie among employees while they remain “apart,” video happy hours are becoming more frequent and, with alcohol flowing, the risk that inappropriate comments are made increases.  Also by way of example, some employees may make inappropriate comments upon seeing a co-worker conduct a meeting from his/her bedroom or upon seeing some personal items that unintentionally appeared on camera.  Companies should remind employees that HR policies remain in full force and effect even though employees may be working from home, and engaging in inappropriate conduct even when they are “apart” will not be tolerated.
 
•    Avoiding Retaliation Claims:  During “normal” times, it is not unusual for an employee who fears for his/her job security to claim some form of discriminatory treatment or bring to light some purported violation of law in order to try to gain protection by building a retaliation or whistleblower claim.  The number of employees fearing for their jobs obviously has increased substantially as a result of COVID-19.  Thus, employers likely will see an increase in complaints from employees purporting to engage in some type of protected activity, whether that is complaining about COVID-19 or other safety risks, discrimination, leave requests, or otherwise.  Employers will want to navigate these situations carefully so as to try to avoid potential retaliation claims.

•    Trade Secret Protection:  In “normal” times, having employees work remotely poses a challenge for businesses to protect their trade secrets and other confidential business information.  With more employees working remotely due to COVID-19, the challenge is even greater, as there are more opportunities for employees to misappropriate or inadvertently disclose trade secrets and other confidential business information.  This concern affects all industries, even professional football, as this article explains one NFL team’s concerns about protecting confidential information related to the recent NFL draft.  Furthermore, when people feel desperate about their economic circumstances, they may be more inclined to take risks to achieve financial gain, even if those risks are against the law or company policy or both.  Trade secrets and other confidential business information also may be at risk from outside intruders or innocent mistakes by employees while using video conferencing technology.  Businesses should revisit and effectively communicate policies, procedures, and practices regarding the protection of trade secrets and other confidential business information.  These policies, procedures, and practices should address not only securing trade secrets and other confidential business information during the employment relationship, they also should address circumstances where employees working remotely are laid off, furloughed, and terminated in the ordinary course of business.  

•    Noncompete/Nonsolicitation/Nondisclosure Agreements:  While the use and application of noncompete, nonsolicitation, and nondisclosure agreements often is related to the protection of trade secrets and other confidential business information, they also pose a separate set of issues.  Companies may need to revisit these agreements, particularly where COVID-19 has had a substantial impact on the company’s business interests, whether that impact has been positive or negative.  For example, some businesses are serving new markets and have been selling new products and services as a result of COVID-19.  On the other hand, many businesses have seen markets and other business opportunities disappear entirely or diminish significantly.  When a company’s business interests have expanded or diminished in this regard, the company may need to update its noncompete, nonsolicitation, and nondisclosure agreements to tailor the terms of those agreements to the company’s new (expanded or contracted) business interests.  In addition, companies may need to reevaluate the strength of existing agreements, as the change in business circumstances may make certain provisions outdated and less likely to be enforced.  Lastly, although many courts have limited their operations, companies should be aware that most courts remain available to hear emergency motions, such as a motion for a temporary restraining order, which a company may want to seek when faced with a misappropriation of a trade secret (see discussion above) or when faced with a violation of a restrictive covenant such as a noncompete, nonsolicitation, and/or nondisclosure agreement.

•    Ongoing Employment Law Compliance:  While there may be a greater focus on complying with certain employment laws based on issues arising from COVID-19, it is important not to lose sight of the many statutory and common law protections in the workplace.  Businesses need to remain diligent with all aspects of employment law compliance, whether that concerns anti-discrimination statutes, wage/hour compliance, leave laws (including FMLA other than FFCRA obligations), privacy concerns, workplace safety, employment contract terms, and more.