CBIZ Sattler Adventure Sports Blog

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Ward, Hayden
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Common Employment Practices Claims Arising from COVID-19

Outfitter Employment Claims

The uncertainty of COVID-19 has left adventure sports owners at an elevated risk for employment-related exposures and claims, including wrongful termination, discrimination and retaliation. The following insights address the most common of these risks and how to limit future risks.

Safe and Healthy Workplace Claims

During March 2021 alone, the Occupational Safety and Health Administration (OSHA) received 56,000 complaints and 8,000 safety violation claims. The top COVID-19-related OSHA violations last year revolved around hazard communications, respiratory protection and personal protective equipment (PPE). Allegations included, among others:

  • Unsafe workplaces
  • COVID-19 contraction and/or death
  • Employer failure to decrease COVID-19 exposure
  • COVID-19 spread within the workplace
  • Employer inability to provide adequate social distancing

 

Leave of Absence Claims (FMLA and FFCRA)

In 2020, the federal government passed the Families First Coronavirus Response Act (FFCRA), which included the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act. The legislation provided additional provisions to traditional paid and sick leave. While the FFCRA expired on Dec. 30, 2021, the American Rescue Plan Act (March 11, 2021) extended some FFCRA provisions and added additional qualifiers for sick leave, including:

  • Time off to receive a COVID-19 vaccine
  • Sick leave for recovery from any COVID-19 vaccine-related illness or condition
  • Approved time off while awaiting COVID-19 test results, if the employee was exposed

 

The FFCRA expressly incorporated existing Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) remedy provisions. An employee wrongfully denied expanded leave or not paid during the leave will have a cause of action to recover damages (e.g., lost wages, salary, benefits and other compensation) or actual monetary losses resulting from the denial of leave (e.g., costs of child care) with interest. Likewise, employers that fail to comply with the Expanded Paid Sick Leave Act will be made liable to remedy provisions under the FLSA.

Earnings Claims

Outfitters have restructured their workforce including salaries and compensation to fit their current needs. Be aware that reorganization can influence FLSA claims related to salary and hour reductions. Altering work arrangements and compensation structures may be essential for organizations to remain open. Unfortunately, these changes could inadvertently alter worker classifications.

Injustice/Discrimination Claims

Federal and state governments have enacted numerous legislations to protect employees from discriminatory practices. Employees who were laid-off or furloughed during the pandemic could challenge selection as an adverse employment action under anti-discrimination laws. Employers should cautiously use objective means when selecting employees for furlough or layoffs. Records should also be maintained, indicating the criteria utilized, and evaluate any disparate impact from the decision.

Additional liability derives from an employer’s failure to reasonably accommodate American Disability Act (ADA) protected workers. These claims could be based on a rejection for remote work accommodations. Review this  Equal Employment Opportunity Commission’s (EEOC) publication  to receive more guidance on pandemic preparedness and the ADA.

Retaliation Claims

Retaliation occurs when an employee participates in a legally protected activity and was subjected to a negative employment reaction for their involvement. An employer could be liable for retaliation if the employee can prove the protected action is related. Many pandemic-related retaliation claims revolve around unsafe working conditions, COVID-19 exposures and accommodation, or leave request denials.

To combat future retaliation claims, employers should establish or ensure anti-retaliation policies. Procedures should include reporting processes that describe how and to whom these claims should be reported. The policy should also provide concise procedures for investigations.

Most importantly, protecting your organization from a retaliation claim means proper documentation. Providing extensive documentation for the employer’s rationale behind employment decisions could heavily influence a successful retaliation defense.

Wrongful Termination Claims

Pandemic-influenced furloughs and layoffs have led to a major increase in wrongful termination claims. These allegations can derive from numerous COVID-19-related conditions. The most common pandemic-related wrongful termination claims include:

  • Expression of concerns regarding safety
  • Termination influenced from medical leave due to virus contraction or hospitalization
  • Compliance with local shelter-in-place orders
  • Requests for COVID-19 ADA accommodations

 

To mitigate the potential for a wrongful termination claim, employers should proceed carefully upon receiving employee complaints. Additionally, meticulous records of complaints, the investigation process and the ultimate reasoning behind the termination should be maintained. Adventure sports organizations can also protect their businesses through  protective liability coverage.

Disclosure of Confidential Information Claims

In order to maintain the privacy of COVID-19-related medical documents, the ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that they have the disease or suspect they have the disease, or the employer's notes or other documentation from questioning an employee about symptoms.

Limiting Future Risk

COVID-19 has resulted in many liabilities for employers. Employers should consider the following:

  • Establish a return-to-work plan that incorporates federal and local safety guidance (e.g., CDC, OSHA and state health authorities) regarding PPE, workspace hygiene, social distancing measures, etc.
  • Always consult with legal counsel when developing/updating employee-related policies and procedures to verify compliance. Ensure counsel is involved when undertaking recall, rehire and job proposals. This stage is the epicenter of employment-related claims.
  • Confirm employment policies and procedures are impartial and equal.
  • Ensure proper employee communications, especially for management who will be responsible for implementation.
  • Maintain the confidentiality of all medical-related information provided by employees in compliance with federal and state guidance.
  • Continually monitor federal, state and local guidance, as well as legislative enactments.

 

Our team has the knowledge and experience to provide comprehensive insurance and risk solutions designed to safeguard your outfitters and guides business. Get the protection you need today;  request a free CBIZ Adventure Sport Insurance quote.

*We strongly advise employers to seek legal counsel guidance when subjected to any employment practice allegations.

This blog may contain scenarios that are provided as examples only. In an actual claim situation, coverage is subject to the terms, conditions and exclusions of the policy issued. The information provided is general in nature and may be affected by changes in law or the interpretation of such laws. The reader is advised to contact a professional prior to taking any action based upon this information.

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