S2 E3 Returning to work after COVID-19

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Helen Rella of Wilk Auslander joins us to talk legal issues and potential liabilities employers face during the pandemic. In this episode we discuss some questions you might have regarding mandates, compliance and recommendations.

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Today’s Guest: Helen Rella, a member of Wilk Auslander’s Global Practice Group

Helen Rella is a member of Wilk Auslander’s Global Practice group, advising corporations, individuals, and governments conducting business in the U.S. and abroad. Helen has substantial experience in labor and employment law, representing both individual and corporate clients. She is an expert at developing and implementing appropriate personnel policies and procedures, and defends clients against discrimination claims, as well as challenges in court and before the Equal Employment Opportunity Commission, State and City Divisions of Human Rights, and the Department of Labor.

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SHOW NOTES

Topics we discussed:

Most Common Question – Employee Fear

  • Fear is not an excuse to refuse to return to work
  • Employer sets the terms and conditions of employment and that includes where work is done
  • Refusal to return to work = resignation/termination of the employment relationship
  • Would impede an employee from collecting UI
  • With UI – there is a disincentive to return for some workers who are making more now than before because of the $600 kicker paid under the CARES Act on top of State thresholds and the increased time frame to collect
    – In NY from 26 week maximum to 39 weeks

Work From Home Issues

  • Costs associated with work from home
    – Employer has no obligation to reimburse expenses

Employer Accommodation Requests

  • Employees with “co-morbidities” = underlying medical conditions – such as heart disease, obesity, diabetes, lung conditions and those 60+ (factors that suggest increased risk of death from COVID) may request an accommodation under the ADA – such as leave or remote working
  • Accommodations requested must be “reasonable”
  • Cannot cause an “undue financial hardship” to the employer.
  • Problem employers face is that employees have been working effectively now for 3+ months remotely and therefore difficult in most circumstances to argue hardship or unreasonable

Issues that We Anticipate Employers Will Face In Terms of Future Claims

  • Denial of Accommodation Request Issues
  • Denial of Leave Requests under the FFCPA
    – Provides leave for COVID illness, quarantine etc and for childcare closures some at reduced pay
  • Bringing Employees Back to Work & Q of who comes back and when
    – Most employers are delaying returns/full returns until the Fall
  • Liability for Catching the Virus
    – Generally not a cognizable claim because impossible to determine where caught
    – WC coverage denials (which normally would cover workplace related injury claims)
    – Waivers of liability are not viable with respect to employees