Reopening During the Pandemic: ‘Minefield’ Awaits the Unprepared

Whistleblower suits

Potential personal injury suits aren’t the only litigation that businesses may face.

A. Vince Colella, a civil rights and personal injury attorney and co-founder of Moss & Colella in Southfield, anticipates there will be an uptick in whistleblower lawsuits once the COVID-19 crisis begins to wane. He expects these cases will be presented from a perspective different from that of traditional whistleblowers.

“Whistleblowers tend to blow the whistle for what they deem is the greater good,” he said. “With COVID-19 whistleblowers, I believe you will see more cases of perceived harm to the individual whistleblowers themselves.”

Colella called the governor’s Executive Order 2020-70 the “whistleblower playbook,” adding it includes a number of minimum requirements for re-emerging businesses.

“If an employee were to report suspected violations of the order, they would then trigger their protections under the Whistleblower Protection Act,” he said.

A key date to keep in mind, according to Colella, is April 3, when Executive Order 2020-36, which addresses employer liability, was issued.

“The order says employers may not discharge, discipline, or retaliate against an employee for staying home when he or she is at risk of infecting others,” he said. “Those employees have to be treated as if they are exercising their rights under the Family Medical Leave Act, including companies of less than 50 employees.”

Villaire said that, even as the economy “opens up,” there likely will be restrictions that limit or prohibit certain workers from resuming activities.

“There will also be restrictions in the workplace such as protective equipment, rotating schedules, telework when feasible and social distancing,” he explained. “Employees who are terminated or disciplined for refusing to work because they believe the order prohibits them from working or because they believe the employer failed to implement workplace restrictions could file lawsuits and argue they were improperly disciplined for refusing to violate on Governor’s Order.

Colella agreed, and said there are three aspects to examine.

“The first is, what protections do employees have under the governor’s executive orders, and when did those protections arise,” he explained. “The next is, what possible liability from a whistleblower standpoint do Michigan companies face? And finally, what do Michigan companies face in terms of possible liability for failing to follow the minimum guidelines put out by the CDC, and then adopted and incorporated in the governor’s orders?”

Compliance issues

Villaire said he also expects issues regarding employee compliance with social distancing and the wearing of protective equipment. While not all businesses require use of masks, he noted he has dealt with instances of employees refusing to wear them in the workplace.

“Some businesses want to enforce this requirement, particularly in common areas,” he said. “Employers can require employees to wear masks and take disciplinary action for failure to wear masks, even if not required by an order from the governor.”

He cautioned, though, some employees could report that, due to health conditions, they are unable to wear masks.

“If the condition is ‘disability,’ the employer has to be careful, and should discuss other alternatives with the employee to accommodate that disability,” Villaire said. “Employers could end up with disability discrimination lawsuits if they do not properly respond to employees claiming they are unable to wear a mask.”

Reopening businesses must also keep HIPAA concerns in mind.

“How far do employers go and, if they don’t meet the minimum guidelines, are they subject to liability?” Colella asked. “I think screening for symptoms is going to make people a little uncomfortable. Do employees want get their temperatures taken? Do they want to have to fill out daily health logs? Do they have to answer questions about symptoms? What are the HIPAA protections for employees?”

Villaire said he expects employers to struggle with getting employees back to work who have a high risk of contracting COVID-19.

“Employers cannot exclude employees from the workplace simply because of the employee’s age or preexisting health conditions,” he said. “However, if an employee does not want to return to work due to a preexisting health condition, an employer must discuss the issue with the employee and consider whether the employer has an obligation to accommodate the employee’s condition. That accommodation could include time off from work.”

Getting back to work

Villaire said one of the biggest challenges he’s seen for employers is trying to get employees to return to work.

“Some employees are hesitant to come back because they are concerned about contracting COVID-19; some employees expressed that they prefer to stay home and collect unemployment,” Villaire explained. “If an employer has work available for an employee and they are going to pay the employee, unless the employee has a true covid-19-related reason to return to work, it is unlikely the employee will be eligible for unemployment.”

Meanwhile, Colella noted some employers that were not classified as essential businesses ignored the governor’s executive orders, and forced their employees to work.

“Stories are starting to circulate about employees with limited means being forced to leave their homes and work in an environment without social distancing that significantly increases their chances of catching the virus,” he said. “One non-essential employer forced his staff to work on a Saturday and then refused to pay them. They can say no and lose their jobs, but they don’t have the clout to speak up against the employer directly now — and they can’t leave and find another job. When employees can’t follow the governor’s orders to stay home and stay safe, they get scared — and angry.”

If you would like to comment on this story, email Kelly Caplan at kcaplan@mi.lawyersweekly.com.

This article was first published in Michigan Lawyers Weekly on 5/21/20