Employment discrimination policy transformed by COVID-19

Employers may start settling claims that would have previously been litigated. Employees could accept less money sooner than holding out for high jury verdicts.

(This employment law column is by Sonya Goodwin, Partner at Sauer & Wagner LLP of Los Angeles.)

For companies that strive to avoid employment discrimination claims, the COVID-19 pandemic has completely upended their legal approach.

The previous two to three boxes checked in order to proceed with discipline or termination were retaliation, protected activity or protected class. Now, this list keeps growing, and companies large and small are now facing claims for routine business actions that would have gone undetected before. These are unique challenges being exposed for the first time.

In 2020 there were a record number of lawsuits filed alleging discrimination or retaliation because of COVID-related issues, and I expect that number to grow considerably in 2021. Some these unique challenges include:

• Terminating or laying off workers in response to unprecedented business downturns while simultaneously minimizing the risk of being sued by disgruntled employees.
• Ensuring compliance with evolving safety ordinances without simultaneously violating ADA and other employee protections.
• Managing confrontational workers without simultaneously receiving retaliation claims.

Routine downsizing is now fraught with special considerations. An employee of poor performance is now a larger problem for the employer, including if that employee tok medical leave due to COVID-19. Extensive documentation establishing the employee’s poor work performance record or bad attitude may not be conclusive against a claim that the worker was singled out due to a protected medical leave. It’s trickier because, of course, that extensive documentation is important. In this pandemic era, it should be created and maintained.

California law offers a presumption that COVID-19 is a workplace injury that’s covered by workers compensation, helping both employees and employers in a tough time. A sick employee has their medical expenses covered, while affording employers to dispassionately review possible job performance issues and avoid making termination decisions impulsively.

The Equal Employment Opportunity Commission offers recent guidance on COVID vaccines that additionally sets employers up for a potential no-win lawsuit. Expect to see claims of religious and disability discrimination from vaccine skeptics if employers require the shots, which EEOC guidelines allow. Companies are limited within their right to challenge these claims, and even with evidence of social media posts of statements to coworkers, these challenges are costly and time-consuming. In addition, employers set themselves up for a workplace culture battle if they require workers to get the vaccine, which could lead to a large loss of employees if a huge portion of the workforce refuses to be vaccinated.

Most employers are expected to make vaccinations optional, which could lead to whistleblower complaints of unsafe workplaces and workers refusing to show up, citing an unsafe worksite.

This confluence of public safety and problem employees is now extremely difficult, beyond the normal challenge of handling whistleblowers. For a management style, this is Hobson’s choice. That employee with poor or questionable work performance and disciplinary issues are likely to assert whistleblower claims if disciplined or terminated.

While the designation of “at-will” nearly has no meaning today, employers requiring workers to show up have to be excessively attentive to assist employers raising reasonable concerns. Businesses are required by state law to create and execute return-to-work plans that specify when and where masks can be worn, where to place sanitizer or hand-washing stations and how many employees can be physically present in a designated area. Still, much about COVID-19 remains unknown. It continues mutating, which increases transmissibility, even among the vaccinated.

From the worker perspective, the COVID-era workplace dynamic can be appreciated. Workers should understand that most companies are doing their best to respond to a shifting legal environment while trying to protect their employees and customers. Yes, the pandemic has been challenging for workers. Many were furloughed, working from home with children to tend to, or caring for sick family members. However, the unique challenges exposed by this pandemic is remarkable for companies.

Considerable patience and effort are needed in order to move this country and its workforce into something that resembles a pre-pandemic “normal.”

Moving forward, employees have a responsibility. Any accommodation request should be documented in detail, whether it involves working remotely or skipping vaccines. Any inkling of harassment, discrimination or retaliation that could partially be a motivating factor for discipline or firing allows the employee leverage and strategic options.

Any lapse in safety protocol should be reported to management and, if no further action is taken, to CalOSHA or another appropriate agency.

I offer workers and employers the best advice to take is to prepare and anticipate mistakes. Employees could face a situation where employers are unwilling to accommodate a remote work request or another accommodation. There could be larger waves of negligence, discrimination and retaliation claims relating to the pandemic. An increase in arbitrations, mediations and settlements of workplace complaints will be driven by ongoing court closures and declined jury pools. There will be claims that companies would have once litigated that will now settle earlier, and workers will accept less money sooner in settlements rather than hold out for high jury verdicts.

I anticipate that few will wait four to five years to receive an award from a company that might not exist.

Sonya Goodwin, Partner at Sauer & Wagner LLP of Los Angeles, represents employees and employers in a wide range of claims, including wage and hour violations, discrimination, harassment, retaliation, wrongful termination, defamation, intentional infliction of emotional distress and breach of contract. Sonya also advises clients on all facets of employment law. She can be reached at sgoodwin@swattys.com or (310) 712–8110.