HR Policy Memo Surveys Return-to-Work Compliance Issues as Congress Considers Limited Liability Shield

May 15, 2020

As employers work to reopen workplaces, possible disconnects are emerging between ensuring employee safety and complying with various employment law requirements, even as Congress considers imposing new ones.  These are detailed in a new memorandum prepared by our Future Workplace Policy Council staff as an important element of the Association's Return to the Workplace project.

Association CEO Tim Bartl has shared the memorandum with Congress, which is considering whether employers should be protected against frivolous lawsuits as lawmakers are also calling for additional laws seeking to protect employees.  In his letter, Bartl noted:  "absent reasonable and flexible interpretation and enforcement of these laws, employers could be penalized for taking the very actions that are in the best financial and health interests of their employees.”

The product of conversations with our members, the document synthesizes the various employment, labor, and privacy laws with which employers must comply during the return to workplace effort while raising key compliance and interpretive questions.  Examples include: 

  • Increased liability under the Age Discrimination in Employment Act for employers who seek to prevent older employees from re-entering the workplace out of concerns for their own safety and the safety of other employees;

  • Whether time spent undergoing pre- or post-workplace entry COVID-19 screening is compensable under the FLSA and associated state laws;

  • Liability under the Americans with Disabilities Act for excluding employees from the workplace whose disabilities put them at a higher risk for severe illness from COVID-19;

  • Uncertainty under the Family and Medical Leave Act over whether COVID-19 entitles an employee to FMLA leave; and

  • Increased difficulty in providing predictable schedules as required under several state and local scheduling laws in scenarios involving increasing COVID-19-related employee absences, hours reductions, and workforce restructuring. 

Lawsuits against employers based on their response to COVID-19 are already underway, with Littler reporting a 215% increase in COVID-19-related complaints filed in federal court between March and April.  Meanwhile, Senator Elizabeth Warren (D-MA) has introduced legislation that would allow workers to file claims under various federal employment laws until 90 days after the pandemic is no longer considered a public health emergency.  You can read more about that bill in a separate story here

The memo asks for reasonable flexibility to implement workplace policies to keep employees safe while complying with long-standing laws.  Employers’ measured return to workplace plans demonstrate this.  Meanwhile, Capitol Hill is considering the next coronavirus relief package, with Senate Majority Leader Mitch McConnell (R-KY) having stated that including a limited liability shield is "an integral part in getting life back to normal."  Congressional Democrats, on the other hand, contend that workers need more federal involvement to protect their interests.