Reducing Employer Litigation Risk Post Stay-At-Home Orders
With Governor Abbott’s most recent press conference (April 27, 2020), the stay-at-home order has generally been lifted (and overrides local stay at home orders) and it appears businesses are closer to being allowed to fully reopen. While this may mean that employers can begin requiring employees to be physically present at work, there are still potential liabilities that employers should consider.
First is the Occupational Safety and Health Administration (“OSHA”) regulations which allow an employee to refuse work if certain conditions exist, one of which is the presence of an imminent danger. Requiring employees to work in conditions that do not follow CDC guidelines could be deemed to pose an imminent danger in violation of OSHA regulations.
Second, if an employee tests positive for COVID-19 and believes the virus was contracted at work he or she may be able to seek benefits under an employer’s compensation policy.
Finally, an employee may be able to file a claim under the American’s with Disabilities Act (“ADA”). This is a possible avenue for employees who may not feel comfortable coming into work because they are in the CDC’s COVID-19 “vulnerable populations” group. Broadly speaking, the ADA requires employers to provide reasonable accommodations for employees with disabilities. The definition of a disability is broad, and it is possible that the condition which puts an employee in that “vulnerable populations” group is also a qualified disability under the ADA.
Lastly, Texas is an at-will employment state, which means employers have broad termination rights. Keep in mind though that an employee cannot legally be terminated solely because he or she took leave under the Family and Medical Leave Act or the Families First Coronavirus Response Act for qualified COVID-19 related reasons.
PRACTICE TIP: If your type of business allows it, do your best to accommodate employees who want to work from home. While this is not feasible for all situations, should you be faced with a lawsuit in the future you may fall in a court’s good graces for making an effort. If your business requires employees to be on location, strictly follow CDC social distancing guidelines as well as any state or local guidelines.
Due to the unprecedented nature of COVID-19, there is no one-size-fits-all advice. If you are concerned about a COVID-19 employment related issue, we can help you with that. Please contact Ron Holmes at 469.916.7700 ext. 105 or email Ron.
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About Ron Holmes
His real estate law practice is as broad as it is deep. Mr. Holmes has served as lead counsel on real transactions all across the United States (more than twenty States), representing public and private companies, both domestic and international, in all manner of real estate transactions, including large scale multi-use land developments and high rise residential condominiums, to acquisitions and sales of operating property portfolios, office, industrial and retail leasing and virtually every other form of real estate development, construction, financing, investing and leasing.Learn more about Ron…