More than half a year has passed since COVID 19 came to America and changed so much about our lives, and courts already have seen hundreds if not thousands of cases related to the disease. To date, however, while legislation has addressed things like paycheck protection, enhanced unemployment benefits, and COVID-related time off, courts have issued only a few rulings on some of the most important employment law issues raised by the disease. They’ve overwhelmingly upheld state and local government orders that have shut down or limited business activity, but except for a handful of cases, they have not addressed issues like workplace safety, disability accommodation, or failure to provide required notification of plant closings and large “mass” layoffs. This blog discusses the few decisions to date, and considers what might be coming as cases progress through the litigation pipeline.
Early Precedents Make Safety Voluntary and Attendance Mandatory.
In early March of this year, the AFL-CIO petitioned the Occupational Safety and Health Administration (“OSHA”) to issue an emergency temporary standard (“ETS”) “to protect working people from occupational exposure to infectious disease, including COVID-19.” The agency denied the petition, and the AFL-CIO appealed. In June, the U.S. Court of Appeals for the District of Columbia ruled that an ETS was not necessary. The court deferred to OSHA’s finding that new regulatory tools were not required. So, any special measures to protect against COVID have been left mostly to the discretion of employers, unless employees are exposed to a serious and imminent hazard that can’t be addressed under existing regulations.
In May, while the appeal of the AFL-CIO case was pending, a U.S. District Court in Missouri similarly deferred to OSHA, and dismissed an action brought by a workers advocacy group for an injunction against a meat processor. The plaintiffs claimed COVID protective measures at a meat processing plant were inadequate. The court first held it shouldn’t hear the case at all, because “pursuant to the primary-jurisdiction doctrine [it had] to allow [OSHA] to consider the issues raised by this case.” Nonetheless, it did address the factual basis for the plaintiffs’ claims and found that they had “not met their burden of proving that the extraordinary remedy of an affirmative injunction is justified.” In effect, the ruling meant that OSHA’s serious and imminent hazard rule had not been violated, and that the workers, who were deemed essential, could be fired if they did not report for work.
These cases do not, however, mean all claims related to COVID and workplace safety will fail; only that plaintiffs likely will have to go through the existing OSHA reporting process. Anyone contemplating such an action should not contemplate very long, as the six-month statute of limitations starts to run with the occurrence of an OSHA violation. Moreover, if an employer retaliates against an employee for reporting, a retaliation claim has to be made to the agency within thirty days.
Are the Otherwise Abled Treated Otherwise by the Law?
Do the two cases discussed above mean that even older employees, or employees with underlying medical conditions, can lose their jobs when they stay away from work because of concerns about the adequacy of protective measures? Or would they be able to demand accommodation under the Americans with Disability Act (“ADA”)? To date few cases (mostly involving prisoner rights) have addressed this issue, likely because claims for failure to accommodate don’t go directly to court. The first step generally has to be filing a charge with the Equal Employment Opportunity Employment Commission. There are cases pending, but no really definitive judicial decisions yet.
That said, at least one case suggests COVID-related disability accommodation claims might be recognized. It involved a 98-year old city council member in Alexandria, Louisiana, who not surprisingly had numerous underlying medical conditions, and because of COVID he was granted an injunction that enabled him to participate in council meetings by phone. The court held that its task in deciding whether to grant the injunction was to determine “whether the requested accommodation was reasonable or whether it imposed an ‘undue financial or administrative burden’ or required ‘fundamental alteration in the nature of the program.’” The injunction applied, however, only so long as the Louisiana Governor’s emergency order on COVID was in place. Whether more traditional workplace accommodation claims are so favorably received remains to be seen. Courts currently have such cases before them.
Does COVID Excuse Compliance with the WARN Act?
The Worker Adjustment and Retraining Notification Act, or WARN Act, requires that in some circumstances, an employer has to give 60 days’ notice of a plant closing or large layoff, or at least pay 60 days’ compensation (including benefits) if the notice is not given. There’s an exception, however, for closings or layoffs caused by “unforeseeable business circumstances.” Does COVID provide an “unforeseeability” defense? The answer is not yet clear, and likely will depend on case-specific facts. If a layoff occurred in August rather than February or March, unforeseeability would likely be harder to assert, for example. And what if layoffs were already in the works when COVID hit. Why should a company then get to dodge an obligation it would have been facing even without COVID? Again, how such issues get resolved in court remains to be seen as cases work their way through the judicial system.
Is Minnesota any Different?
Minnesota law differs from federal law in at least two important ways. First, under the Minnesota Human Rights Act, a plaintiff does not have to file a charge before going to court for failure to accommodate claims. Second, this May Governor Walz issued Emergency Executive Order 20-54, which clarifies how existing protections apply to COVID issues. It specifically states that “workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm. This includes a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with an infectious agent such as COVID-19.” To date, however, even though it’s easier to get in front of a judge in Minnesota, no court has yet issued a decision on whether the “reasonable belief” language will soften the federal serous and imminent hazard test, either for healthy workers or those who require disability accommodation. As suggested in an earlier blog on protection for employees who are reluctant to return to work during the pandemic, this question likely will be resolved only when employees press state claims that would probably fail under existing federal law.