COVID Employment Questions Answered

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• What sorts of concerns are you hearing from employees related to the COVID-19 pandemic? How are you addressing those public health concerns?
• How is the COVID-19 pandemic affecting the litigation of employment law cases already in progress?
• How do you see the COVID-19 pandemic impacting employment law in the future?

Employees in Minnesota have plenty of questions in connection to the COVID-19 pandemic. Are you entitled to:

• sick leave for COVID-related reasons?

• What can you do if your employer isn’t adequately protecting your workspace?

• Is working from a home office covered by the Americans with Disabilities Act?

We recently caught up with employment lawyer David Schlesinger of Nichols Kaster in Minneapolis, who shed some light on these directives and concerns.

What sorts of concerns are you hearing from employees related to the COVID-19 pandemic? How are you addressing those public health concerns?

We are receiving a high volume of inquiries from potential clients seeking advice about whether they are entitled to take leave from their jobs or telework due to COVID-19. Many of those questions involve the new Families First Coronavirus Response Act. FFCRA provides that, with some exceptions, employers of less than 500 employees must provide paid sick leave policies to an employee who “is subject to a . . . quarantine or isolation order related to COVID-19; has been advised by a health care provider to self-quarantine related to symptoms of COVID-19; is experiencing COVID-19 symptoms and is seeking a medical diagnosis; is caring for an individual subject to a [doctor-recommended] order or self-quarantine; is caring for a child whose school or place of care is closed—or child care provider is unavailable—for reasons related to COVID-19; or is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.”

In instances when the FFCRA does not apply, employees with serious high-risk health conditions may still be able to take leave from work or remote work as an accommodation under the Americans with Disabilities Act or the Minnesota Human Rights Act. If they are caring for a family member who is under the care of a health care provider, they may also be entitled to unpaid leave under the Family and Medical Leave Act.

We are also hearing concerns from employees who believe that their employers are not taking adequate steps to protect the worksite in light of COVID-19. In those instances, we are generally advising employees of their right to a work environment free of recognized hazards under the Occupational Safety and Health Administration (OSHA) and their related right to be free from retaliation for reporting a suspected violation of law under the Minnesota Human Rights Act and the OSH Act, and other laws. Similarly, employees who report to the government that an employer has misused relief funds granted as a result of the pandemic may be able to bring a claim under the False Claims Act.

How is the COVID-19 pandemic affecting the litigation of employment law cases already in progress?

In two primary ways: it is slowing things down and creating uncertainty related to damages. The pandemic is generally delaying the prosecution of cases. Courts are, understandably, granting extensions of discovery schedules and continuing trial dates. I anticipate that as the situation continues, courts will raise their expectations regarding parties’ ability to take video depositions, exchange documents electronically, mediate via videoconference, and otherwise take steps to prosecute cases remotely. I am concerned, however, that jury trials will be delayed by many months, significantly slowing the progression of cases set for trial.

Damages in employment law cases are also more uncertain due to COVID-19 because employees are taking longer to mitigate their damages, since it’s very difficult to find a job right now. By the same token, employers defending claims brought by employees who were terminated for discriminatory reasons are arguing that employees cannot prove damages to the extent they would have been furloughed or laid off had they continued to work for the employer during the pandemic.

How do you see the COVID-19 pandemic impacting employment law in the future?

Employees often seek to telework as a reasonable accommodation under the Americans with Disabilities Act and many employers argue that they cannot offer such an accommodation. Many more employers are permitting teleworking right now as a result of the pandemic than ever before. To the extent that employers are able to run their businesses with employees teleworking, that is going to be a powerful argument for employees in the future who seek telework as an ADA accommodation.

For information on more legal questions regarding COVID-19, visit FindLaw’s legal center, or find more articles on superlawyers.com/articles (search for COVID-19).