The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.
These interesting times often call for quick action and fast decisions, especially for essential businesses trying to juggle productivity and profits with health and safety concerns. Whether currently operating, or planning how to get back to work, employers must be mindful of hasty employment actions (“What? She won’t come in to work? She’s fired!”). Unwittingly, managers may engage in potentially unlawful conduct and retaliation claims can follow.
Retaliation claims can arise when employees behave in legally protected ways and suffer adverse employment actions as a result. For example, most employers know that the receptionist cannot be fired because she complained of sexual harassment. That’s retaliation. Similarly, employees cannot be fired for complaining about not receiving overtime pay, or because there’s a funny smell in the warehouse, or (what has become more pervasive), because they fear that something at work is potentially harmful to their health or safety.
In the “before” times, a company could be justified in pulling the termination trigger when an employee refused to come in to work. In the COVID-19 era, however, employers must proceed with caution. Perhaps the employee has a justified reason for being concerned about coming to work—such as having an underlying health condition—which could entitle the person to some legal protections.
That employee continually pointing out the lack of masks or that others are standing too close to him or her on the line, should not be reprimanded or suspended as a troublemaker. Rather, find out whether there is a valid concern and if the company can do something about it, to avoid the risk of a retaliation claim for mishandling an employee complaint.
We anticipate a rash of litigation complaints arising from employer missteps during this challenging period. Retaliation is only one of them. Consult with experienced labor and employment counsel to make sure your business is putting in the protections it needs. Having complaint policies and procedures is key. Train employees on how to raise concerns and train managers on how to address any issues expressed.
Be sure to discuss appropriate handling of employee complaints, concerns or refusals with counsel before actions are taken that cannot be undone