Job Law Evolves as Reopening Begins

Lawyer Stuart Jackson of Wright Lindsey Jennings in Little Rock has been advising businesses on the steps they should take to safely reopen so employees can return to work.

Most of the calls attorney Nate Read receives from his clients these days are related to COVID-19.

“It’s definitely on top of employers’ minds,” said Read, who practices employment and labor law and works out of the Rogers office of the Mitchell Williams Selig Gates & Woodyard law firm.

“The inquiries and questions have been very broad,” he said. “There’s been so much regulation and new statutes and new requirements that are out there that I think a lot of employers, and employees for that matter, are trying to understand how they all interact and work together.”

As COVID-19 has upended the economy and caused more than 100,000 deaths across the country, it also has altered employment law from safety to workers’ compensation issues.

COVID-19 has forced companies to confront workplace issues, said Elizabeth Tippett, an associate professor who teaches employment law at the University of Oregon School of Law. “It’s hard because the science on these questions is kind of evolving and the guidance really varies,” she said.

Employment attorneys Arkansas Business spoke to recently said they foresee lawsuits tied to COVID-19 issues.

“We’ll see some litigation from people who think they were fired for coming down with COVID-19 or they weren’t given proper leave under the federal Families First Coronavirus Response Act,” said Stuart Jackson, a partner in the Wright Lindsey Jennings law firm in Little Rock whose practice area includes employment law. The FFCRA requires certain employers to give their workers paid sick leave or expanded family and medical leave for reasons tied to COVID-19.

The family of a Tyson Foods Inc. employee filed a federal suit last month in Texas against the Springdale company. The estate of Camha Thi Vu said in the lawsuit that Vu wasn’t provided appropriate personal protective equipment against the coronavirus. “Tyson’s negligence caused Ms. Vu to contract COVID-19 and die,” it said. The family is seeking an unspecified amount of damages.

Tyson said in a statement to Arkansas Business that it is “saddened by the loss of any Tyson team member and sympathize with Ms. Vu’s family at this difficult time.” Tyson said it has put in place “a host” of protective measures at its plants, measures that meet or exceed guidance from the Centers for Disease Control & Prevention and the Occupational Safety & Health Administration for preventing COVID-19.

Workers’ Compensation

On April 14, Gov. Asa Hutchinson signed an executive order making it easier for first responders and frontline health care workers who said they contracted COVID-19 at work to have their workers’ compensation claim approved.

“If you’re a frontline heath care worker or first responder, I doubt if anybody is going to fight the case,” said Lee Muldrow, a partner at Wright Lindsey Jennings who has handled workers’ compensation defenses for three decades.

In most cases, employers carry workers’ compensation insurance, he said. That means that, generally, employees can’t sue employers for work-related injuries. Those claims go before the Arkansas Workers’ Compensation Commission.

Other workers, however, might have difficulty proving that the virus was contracted at work “when it’s all over the community,” Muldrow said.

He expects state legislation or an executive order to make it easier for other workers who contract COVID-19 to have their workers’ compensation claims approved.

The Arkansas State Chamber of Commerce and the AFL-CIO are “looking to protect employers,” Muldrow said. “Because right now employers are going to begin bringing employees back to work. And some of those employees who come back to work are going to get sick.”

He said the state chamber and the union don’t want employees to file negligence lawsuits against companies, suits alleging that they shouldn’t have brought the worker back so soon.

“We don’t have it yet, but there will likely be legislation or an executive order passed to shield employers from tort liability as a result of bringing employees back,” Muldrow said.

He also expects companion legislation approved for employees who contract COVID-19 at work that makes it easier for them to win a workers’ comp claim. “We don’t know if that’s going to happen,” he said. “It’s just likely.”

Addressing Worker Fears

As companies begin to reopen, if an employee fears returning to work, the company needs to ask the employee why, said Jackson, the attorney at Wright Lindsey Jennings.

“Just a generalized fear of getting COVID-19 is usually not enough” to keep the worker home and paid under the FFCRA, he said. The FFCRA has specific reasons a person can take paid leave. “But if you have legitimate concerns about the safety procedures that your employer has in place, that’s a legitimate topic to talk about,” Jackson said.

As employers start bringing workers back, companies need to review their policies to make sure they’re following the new employment laws and regulations, including wearing masks and social distancing, said Brian Vandiver, a partner at Cox Sterling McClure & Vandiver of North Little Rock. Vandiver primarily represents employers in labor and employment law.

“Safety is obviously No. 1, making sure not only the customers are safe but also the employees,” he said. “My advice to my clients has been better to be safe than sorry and do more, not less,” Vandiver said.

David Martin, who practices employment law at the Rose Law Firm of Little Rock, said most of his clients have continued to operate through the pandemic.

Nevertheless, any employer, whether it’s opening up or continuing operation, has to consider issues such as limiting employee-to-employee contact and keeping places cleaner than before.

“There are companies that will come in and sterilize your workplace,” Martin said. “Employers are going to have to look at that because under OSHA, an employer is required to provide its employees a safe place to work. And this COVID pandemic, and anything else like it that follows, will be viewed by OSHA as a hazardous condition that employers are required to address.”

If the business is sued, a company’s defense would be that it followed the guidelines from the Arkansas Department of Health, the CDC and OSHA.

Calling employees back to work also could lead to an employment act violation if the company is not careful, Jackson said.

An employer can’t say that a worker who is 70 “doesn’t need to come back yet because he’s susceptible,” Jackson said. “That’s, I guess, a noble thought, but … you need to leave it up to the employee and the employee’s doctor.”

Jackson said if the 70-year-old is ready to come to work, “you really can’t tell him, ‘No, … because you’re too old. We’re fearful for your health.’ … That’s a trap I think people will fall into.”

That scenario would be a potential violation of the Age Discrimination in Employment Act, he said.

Getting Inside the Building

As employees return to their work sites, employers now can take their temperatures before allowing them on the premises. Employers weren’t allowed to do that previously, said Martin of the Rose Law Firm.

“In my view, the law was pretty clear, … that would be a medical examination under the [Americans With Disabilities Act], and consequently, they couldn’t do it unless they had good reason,” Martin said.

In mid-March, the Equal Employment Opportunity Commission issued a directive saying that employers may take the temperature of employees. “So in that manner, the EEOC changed the law in recognition of the pandemic,” Martin said.

Employers also can quiz employees about their health. Employees at Wright Lindsey Jennings are asked a series of health-related questions when they log into the firm’s computer system. They ask whether the employee has been exposed to someone who has tested positive for COVID-19, whether the employee has a fever of 100.4 higher, or whether the employee has lost the sense of taste or smell.

“If you check any of those boxes, it’s going to send an alert to management at the firm, and we’re going to have a conversation with that person,” Jackson said. “We may isolate that person, and we may very well send that person home.”

Laws involving firing employees have also changed in the pandemic. If an employee is terminated, workers in Arkansas now have to be notified of their rights to file for unemployment insurance benefits, said Vandiver at Cox Sterling McClure & Vandiver. That requirement from the Arkansas Department of Workforce Services sunsets at the end of the year. “That was a new obligation that employers had not seen before,” he said.