COVID-19 Legal Questions Employers Need to Be Able to Answer

The COVID-19 virus has presented workplaces with several new legal challenges. Employers have to consider everything from updating their sick day policy to vaccine mandates to whether they’re liable for a wrongful death lawsuit if an employee dies from COVID-19. The post-pandemic world is full of potential pitfalls, so here are eight questions that will arm you with the information you need to thrive in the COVID-19 era.

Am I at risk for a wrongful death lawsuit?

Hundreds of wrongful death lawsuits have been filed against employers since the beginning of the COVID-19 pandemic in early 2020. These lawsuits question whether or not an employer took the necessary precautions to protect their employees from contracting the virus.

Although the legal framework for answering these claims is not yet decided one way or another, courts are apprehensive about ruling against employers since it can be difficult to trace when and where an employee may have contracted the virus.

For example, in Madden v. Southwest Airlines, Civ. No. 1:21-cv-00672 (D. Md. June 23, 2021), the court dismissed the case against Southwest Airlines despite finding the airline liable in four points of a seven-point liability test. The case was dismissed on the basis that the potential scope of liability for any employer would be tough to pin down.

However, that doesn’t mean employers shouldn’t take further action to protect themselves from a potential wrongful death lawsuit. If your employee or employee’s loved one hires a wrongful death attorney to file a claim against you, you’ll want to prove that you took the necessary precautions.

The best way to protect yourself and your business from a wrongful death lawsuit is to follow CDC guidelines for businesses, and the CDC’s recommended best practices for cleaning and disinfecting a workplace. Furthermore, employers should attempt to make reasonable accommodations for employees where necessary, including extending telework and educating employees on how to stay safe.

As an employer, can I legally require my employees to get vaccinated or provide proof of vaccination?

Yes. Under the Occupational Safety and Health Act, employers are required to provide a safe and healthy work environment. New Equal Employment Opportunity Commission (EEOC) guidelines also address an employer’s ability to require or encourage employees to receive the COVID-19 vaccine.

The COVID-19 vaccine is not considered a medical examination and therefore is not restricted by the American Disabilities Act (ADA).

However, employers must be aware that asking pre-screening questions that may reveal information about a disability falls under ADA restrictions. For example, employers cannot ask their employees why they haven’t received the vaccine.

It is the employer’s responsibility to provide reasonable accommodation to an employee who refuses the vaccine based on sincere religious beliefs, according to Title VII of the Civil Rights Act, which sets legal restrictions against religious discrimination.

How much information can I request from an employee who is reporting feeling sick?

During a pandemic, an employer may ask employees reporting an illness if their symptoms relate to influenza, such as fever, cough, sore throat, or chills. The employer must keep all information pertaining to the employee confidential in compliance with the ADA.

How should I respond to an employee who won’t return to onsite work out of fear of contracting COVID-19?

It’s essential to understand why your employee won’t return to onsite work. If your employee fears contracting the COVID-19 virus due to a health condition, then they may be eligible to receive job-protected leave from work under the Family and Medical Leave Act (FMLA) or reasonable accommodations, such as telework, under the ADA.

Some employees may fear returning to work due to the risk it would pose to a family member in their household. If this is the case, it’s recommended that employers follow FMLA guidelines to determine if the employee should take a leave of absence to care for their family member.

Employees who don’t have medical conditions but have a general unease about contracting COVID-19 are not federally protected and can be compelled to come to work. However, approaching your employee with empathy can help alleviate fear.

Can I be held responsible for an employee spreading COVID-19 to their family members after contracting the virus at work?

It would be difficult for an employee to provide evidence that a family member has suffered from secondary exposure to COVID-19, though not impossible. However, the legal framework for addressing this problem hasn’t yet been conclusively written. The best way for employers to avoid secondary exposure issues and the legal questions it brings is to protect employees from COVID-19 as best as possible.

Can I send my employees home if they come to work exhibiting signs of COVID-19?

Yes. According to the Center for Disease Control (CDC), employees that arrive at work exhibiting signs of influenza, such as fever, cough, or chills, should be sent home immediately. Employers are allowed, under the ADA, to send employees home if an illness poses a severe threat.

Can I encourage my employees to telework to reduce the risk of spreading COVID-19?

Yes. Telework effectively reduces the spread of the COVID-19 virus and is considered a reasonable accommodation in compliance with the ADA.

Employees with disabilities that may be exacerbated by the virus may request telework as a reasonable accommodation to reduce the risk of contracting COVID-19.

How do I respond to an employee who requests time off of work to care for a child or relative sick with COVID-19?

Employers must abide by federal and state FMLA laws for sick employees or those whose family members are sick. For covered employers, the FMLA can provide eligible employees with up to 12 weeks of unpaid, job-protected leave.

However, this law does not extend to employees who leave work to care for healthy children who have been dismissed or released from school. Regardless, due to the unprecedented nature of the COVID-19 pandemic, employers may want to review their company policies and allow for more flexible options.

Wrap up

Although the COVID-19 pandemic has introduced many new legal challenges to businesses and employers across the globe, you can take steps to be prepared against potential legal action, including wrongful death lawsuits. By following CDC guidelines, understanding what’s expected of employers under the ADA and FMLA, and exercising patience and empathy, you can ensure your business’s protection during these unprecedented times.