Amid an everchanging legal landscape resulting from the spread of COVID-19, employers must remain mindful of properly responding to and addressing complaints expressed by employees.

In response to the spread of COVID-19, many states have ordered non-essential businesses to close.  States are encouraging employers to allow employees to work remotely wherever possible.  Some employees with preexisting health conditions are expressing concern about continuing to work with coworkers.

States have begun encouraging employees to report to authorities employers that may violate new laws or the closure orders generally applicable to non-essential businesses.  Yesterday, we reported on a New Jersey state hotline being overwhelmed by callers accusing businesses of not abiding by new rules.  Ohio’s Governor and Lieutenant Governor have told the public:  “If you believe a business is in violation of the rules, call your health department or local law enforcement.”  https://thehill.com/policy/healthcare/public-global-health/489327-ohio-governor-urges-public-to-call-law-enforcement.

This all sets the stage for potential protected activity that employers should recognize and be prepared to address consistent with standard procedures.  Here are some key points to consider:

• Understand the laws and rules concerning COVID-19 in any jurisdiction in which your business operates.  Jackson Lewis has an entire team dedicated to advising employers on these laws and rules, which vary by jurisdiction.  https://www.jacksonlewis.com/practice/coronaviruscovid-19

• Where non-essential businesses have been ordered to close, understand what businesses are essential and what businesses are not.  While it varies by jurisdiction, a general list of essential businesses includes healthcare, agriculture, grocery stores, pharmacies, financial institutions, utilities, gas stations, and those businesses that support these essential businesses.

• If your business is an essential business, prepare a brief document describing (1) your business, (2) its general customer base, (3) its role as an essential business or a business that supports essential businesses, and (4) why the business must stay open consistent with an applicable jurisdiction’s rules and laws.

• If your business remains open as an essential business, explain to employees why it remains open as an essential business.

• Wherever possible, enable employees to safely and securely work from home, attending group meetings through virtual meeting rooms and teleconferences.

• Follow standard procedures concerning employee complaints:

  • If an employee complains about a business remaining open:  (1) explore the basis for the complaint with the employee; (2) explain in a reasonable manner why the business must remain open as an essential business; (3) explore options to enable the employee to continue working; and (4) focus any employment decisions on the employee’s performance of essential job functions, with or without a reasonable accommodation.

  • If an employee expresses concern about or refuses to come to the office due to a pre-existing health condition or other disability, despite the business and the employee’s role being essential, explore the underlying basis for the employee’s position and attempt to reach a reasonable accommodation.  This will help to avoid failure to accommodate claims.

• All adverse employment actions should be assessed using legitimate, nondiscriminatory, and non-retaliatory business justifications.

These are trying times that are presenting unprecedented challenges to businesses.  Employers must adapt to the changes, but also remain vigilant in following reasonable standards for addressing conflicts between and complaints from employees.