Workplace Discrimination As A Result Of Coronavirus (COVID-19) Across the globe, billions of people are preoccupied by concerns over the recent outbreak of the pneumonia-like disease, COVID-19, also known as the coronavirus. On March 11, 2020 the coronavirus outbreak was officially declared a pandemic by the World Health Organization, as the number of confirmed cases of the disease continues to climb. This declaration—and other updates regarding the spread of the disease—has placed significant pressure on small and large U.S. businesses to restrict business hours, close their doors temporarily, and scramble to adapt working conditions for the millions of workers nationwide who have already or are soon to experience occupational displacement. Employees in various industries have reported cuts in work hours, job loss, and instructions to work from home. Many individuals have been restricted from returning to work, with little idea of whether they will be returning once the outbreak has been contained. There has been an uptick in certain jobs like delivery services because people can’t leave home. With this increase in traffic there has been more car crashes especially in states like Minnesota. The coronavirus pandemic has led to increased concern over workplace discrimination, an alarming consequence characterized by wrongful termination or discrimination on account of age, race, disability status, parenthood, company position, health status, and other identifying characteristics. If you’ve experienced workplace discrimination as a result of the coronavirus pandemic and wish to take legal action, the lawyers of Florin|Roebig can help. The following guide provides an overview of workplace issues rising out of the coronavirus pandemic, state rules for COVID-19 business closures, and legal options for those who have suffered discrimination as a result of the current health crisis. Business Closures Due To Coronavirus (COVID-19) Businesses of all sizes across the U.S. are facing mandatory and voluntary closures as confirmed cases of the highly contagious COVID-19 continue to increase. The healthcare system has become severely overwhelmed with an urgent need for personal protective equipment (PPE), while industries such as the restaurant, entertainment, and night-life industries are administering shift cuts, employee layoffs, and instructing employees to return home indefinitely as elected officials within the local, state, and federal government consider how to best contain the outbreak. However, with devastating delays in the U.S. response to the deadly pandemic, the U.S. is far behind countries such as China, where the coronavirus spread appears to be slowing—attributed in part to strict surveillance tactics, travel bans, extreme quarantine measures, and other restrictions. The types of business closures vary by state, as decisions to issue ‘stay-at-home’ orders and employment-related restrictions have largely been left to the discretion of local and state officials. Virtually every industry is estimated to observe some degree of impact by the economic and health implications of the coronavirus pandemic. However, some industries are experiencing greater hardship than others. Industries impacted by the coronavirus (COVID-19) business closures include: hospitality services healthcare restaurants transportation domestic work manufacturing fashion professional sports arts entertainment publishing fitness chains social assistance recreation Over the span of one week alone in late March 2020, more than 3.3. million unemployment claims were filed in the U.S.—a record-high number far surpassing the 1.5 million prediction by U.S. economists. The economic toll of this latest public health crisis has been unprecedented, leaving low-wage workers, domestic workers, contractors, gig workers, and self-employed workers in particular at a disproportionate risk for financial strain and job loss. Business Closures By State The extent of business closures across the country have largely been dependent on statewide measures and regulations established by local and state-elected officials. Businesses that are deemed essential services are to remain open and are required to adhere to CDC guidelines on social distancing—which encourages at least three to six feet distance between all individuals, including employees and patrons. States that have seen the highest numbers of confirmed cases in the country—including New York, California, and Washington—have implemented some of the strictest regulations on health and safety requirements for essential and non-essential businesses. Essential services are defined differently by state, but generally include: food and drug health services transportation services government banks housing and real estate funeral homes legal services medical billing call centers delivery services laundry services waste disposal and recycling homeless shelters mental health and substance abuse services social assistance programs manufacturing services any businesses (e.g. restaurants, bars) that can offer delivery or take-out services Examples of non-essential services include: dine-in services at restaurants and bars movie theaters craft/art businesses theaters golf courses gyms car wash services beauty supply stores recreation facilities private clubs In many states, non-essential services have been either encouraged or formally mandated to close their doors. This includes dine-in services of restaurants, bar closures, the closure of retail chains and outlets, fitness centers, event spaces, and more. Despite being called upon to reduce or temporarily suspend services, there are several non-essential workplaces across the country that have attempted to circumvent federal and statewide recommendations. In some instances, this has prompted worker strikes by individuals in various industries who have cited unhealthy working conditions and unreasonable risk to COVID-19 exposure. The status of business closures—and the severity of restrictions—at this time vary by location with differing protocol according to local and statewide measures. State Rules For COVID-19 Business Closures The decision to implement business closures and stay-home orders for U.S. residents has been left largely to the discretion of states and cities. As of March 30, 2020, 30 states have implemented statewide stay-home orders, while many others have issued orders to close all non-essential businesses and services. The 30 states that have implemented statewide, stay-home orders as of March 28, 2020 include: Alaska: Effective March 28 California: Effective March 19 Colorado: Effective March 26 Connecticut: Effective March 23 Delaware: Effective March 24 Hawaii: Effective March 22 Idaho: Effective March 25 Illinois: Effective March 21 Indiana: Effective March 23 Kansas: Effective March 30 Louisiana: Effective March 23 Maryland: Effective March 30 Massachusetts: Effective March 23 Michigan: Effective March 24 Minnesota: Effective March 25 Montana: Effective March 26 New Hampshire: Effective March 27 New Jersey: Effective March 21 New Mexico: Effective March 24 New York: Effective March 22 North Carolina: Effective March 30 Ohio: Effective March 23 Oregon: Effective March 23 Rhode Island: March 28 Vermont: Effective March 25 Washington: Effective March 23 West Virginia: Effective March 24 Wisconsin: Effective March 25 Additional stay-home orders have, in some states, been implemented on a local basis. In Florida for instance, several counties have implemented county-wide business closures and “safer at home” orders in the absence of a statewide order. More than half of the U.S. population is estimated to be affected by these state- and city-wide stay-home orders. Differences in how states are defining essential and non-essential services has created some confusion among various constituencies. The best way to learn how your state or city defines essential services is to look to local definitions shared by your state or city officials. Ten states and provinces that have not implemented stay-home orders but have ordered the closure of non-essential services include: Guam Kentucky Maryland Nevada North Carolina Pennsylvania Puerto Rico Rhode Island Washington D.C. Non-essential business closures and stay-home orders are being updated on a daily basis. Check your local news to learn more about business closure updates in your state and city. Can Your Business Be Fined For Staying Open During Stay-Home Orders? Workers employed at businesses that have been ordered to close by local or state authorities are encouraged to report instances in which employers have neglected mandatory stay-home and non-essential business closures. The consequences of a non-essential business owner failing to follow these executive orders can vary by location, depending on state regulations. In many states, violating stay-home or business closure orders may result in fines, forced closure, citations, and other penalties. The state of Michigan, for example, has issued an executive order requiring most businesses and organizations (non-essential) to tell their employees to stay home for three weeks. Eligible business owners who violate this order may be charged with a misdemeanor, $500 fine, and up to 90 days in jail. Washington state has similarly classified violating their stay-home order as a gross misdemeanor. Washington business owners that are not deemed essential yet have neglected the state’s stay-home order may face fines and jail time. If you’re unsure whether your business qualifies as an essential or non-essential business, refer to your state or city government website to find local definitions of essential services. City and state government resources may also be used by employees who wish to report employer violations regarding COVID-19 closures. Non-Essential Businesses Working Remotely In some states, workers in non-essential services who have the capability to work remotely are permitted to continue working from home during the duration of local stay-home orders. Employers who provide services that would allow employees to remain working on a remote basis from their homes are encouraged to implement strict stay-home policies to protect workers from unnecessary risk and exposure. Regulations on remote working may vary by state or city. Employer Misconduct And Discrimination During COVID-19 The CDC has released official workplace and anti-discrimination guidelines for U.S. businesses in order to “prevent stigma and discrimination in the workplace”. Three primary guidelines shared by the CDC to encourage businesses to play their part in decreasing the spread of COVID-19 in the workplace include: Reducing transmission of the disease: Suggestions for reducing transmission of the coronavirus in the workplace include encouraging sick employees to stay home, separating any employees that appear to have symptoms of the virus from other workers, and identifying where and how the disease might spread in the workplace. Maintaining healthy business operations: The CDC encourages businesses to implement flexible paid sick leave for employees, as well as other supportive policies and practices to protect the physical health of employees and reduce financial strain. Businesses are encouraged to assess their essential functions and adapt workplace operations accordingly. Maintaining a healthy work environment: Businesses are encouraged to increase ventilation rates in their workplaces, as well as provide adequate provisions for hand hygiene and other safety practices for adequate respiratory etiquette. The coronavirus is believed to be airborne, but can also be spread by way of touching surfaces that have come in contact with individuals who have contracted the disease. Despite federal and statewide recommendations, workers in various industries have reported concerns regarding lack of COVID-19 safety protocol, inadequate safety measures implemented by employers, and lacking employee benefits. This includes access to paid sick leave, coronavirus testing, and hazard pay for workers employed in essential services. Under OSHA employment standards, employers are prohibited from retaliating against workers who raise concerns about safety and public health issues in the workplace. Workers who are retaliated against for reporting workplace hazards may file a report with OSHA and be eligible to take further legal action. Examples of employer retaliation include: firing employees who report workplace violations cutting hours withholding employee benefits demoting employees There are several key areas of employer misconduct that have garnered attention in the midst of the coronavirus pandemic, including increased reports of workplace discrimination. Workplace Discrimination Within the context of the global COVID-19 pandemic, public health officials and federal agencies such as the Occupational Safety and Health Administration (OSHA) have voiced several concerns regarding workplace discrimination in the midst of this crisis. Workplace discrimination can generally be defined as any act or inaction that treats an employee differently from other employees on the basis of an identifiying characteristic. Forms of workplace discrimination that employees have been found increasingly vulnerable to in the wake of the COVID-19 crisis include discrimination on the basis of age, race, disability, health status, parental status, and role within a company. Age Discrimination Adults aged 65 and older are at heightened risk for contracting the coronavirus disease (COVID-19) according to the Centers for Disease Control and Prevention (CDC). While it’s important for older employees and their employers to recognize this risk and respond with the health and safety of older employees in mind—employers must also be careful not to discriminate against employees on account of their older age. Doing so may be considered a violation of federal labor laws. Compared to younger employees, older workers may be more likely to face increased questioning about coronavirus symptoms, face higher rates of job loss, reduced shifts, and be more vulnerable to workplace hazards that could risk COVID-19 exposure. Race Discrimination Research into how individuals are perceiving one another in the wake of the coronavirus pandemic has identified increased rates of racial discrimination in the workplace, particularly against Asian-American and African-American workers. According to the Asian Pacific American Labor Alliance (APALA), more than 2 million Asian Americans in the healthcare, transportation, and service industries have or are currently facing xenophobic attacks or discrimination in the workplace. Asian-Americans have reported increased incidents of racial profiling and differential treatment as a result of their racial and ethnic backgrounds. Asian-Americans, particularly those of Chinese heritage, may be more likely to be questioned about having COVID-19 symptoms, receive cuts in work hours, and experience greater harassment and microaggressions by customers and fellow employees on account of their ethnicity. African-American and Latino workers are also believed to be at greater risk for workplace discrimination, in light of the stark racial wealth gap that exists between them and their white counterparts, and disproportionate rates of poverty, food insecurity, and lack of health insurance experienced by these communities. According to a nationally representative survey conducted by the Center for Economic and Social Rights (CSER) in March 2020, African-American and Asian adults were the most likely to report experiencing at least one form of discrimination and other forms of mistreatment due to others’ perceptions of their being infected with the coronavirus. Disability Discrimination The federal Americans with Disabilities (ADA) and Rehabilitation Acts prohibit employers from discriminating against employees on account of perceptions of disability, and require reasonable disability accommodations. In light of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission reminds employers to be mindful of differences between reasonable safety measures—such as screening applicants for COVID-19 after making conditional job offers—and discriminating against employees in such a way that violates ADA standards. Examples of coronavirus-related disability discrimination may include: refusing reasonable accommodations for employees with disabilities treating employees as though they pose greater risk of contracting and spreading COVID-19 on account of perceived disability treating applicants with perceived disability or illness differently than applicants who are perceived to be healthy during hiring and screening processes Coronavirus (COVID-19) Protections For Employees Several federal laws and bills are of particular relevance to employees impacted by the rapid spread of the coronavirus and resulting orders for business closures and social distancing. The following pieces of legislation outline important workplace protections and other workers’ rights that may be important for employers and employees to know as industries continue to face greater stress in business operations. Occupational Safety and Health Act of 1970 One of the most important standards to consider in protecting the rights of employees in the time of COVID-19 is the Occupational Safety and Health (OSH) Act of 1970. This U.S. labor law outlines important health and safety requirements to ensure the right of all workers to safe working conditions. According to the General Duty Clause, Section 5(a)(1) of the OSHA Act, employers are required to maintain workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm”. In response to the COVID-19 crisis, OSHA has issued specific guidelines for employers on how to maintain safe working conditions and reduce risk of exposure for employees who are tasked with performing essential services at this time. Families First Coronavirus Response Act On March 18, 2020, the U.S. Congress passed the Families First Coronavirus Response Act, requiring certain employers to provide employees with paid sick leave or expanded family and medical leave for coronavirus-related reasons. Provisions for providing paid sick leave benefits are effective through December 31, 2020. Under the FFCRA, covered employees are provided: Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee is unable to work due to experiencing COVID-19 symptoms or self-quarantine Two weeks (up to 80 hours) of paid sick leave at two-thirds rate of pay if the employee is unable to work because of a bona fide need to care for another person who is under quarantine, or care for a child (under 18) who has been impacted by recent school and childcare provider closures Additional 10 weeks of paid expanded family and medical leave at two-thirds rate of pay for workers who have been employed for at least 30 days and are unable to work due to a need to take care of a child (under 18) whose school or childcare provider is unavailable due to coronavirus-related reasons According to the U.S. Department of Labor, these provisions apply to workers employed by certain public employers and private employers with fewer than 500 employees. Small businesses may qualify for an exemption to providing paid sick leave for employees who are unable to work if doing so jeopardizes the viability of the business. Family and Medical Leave Act (FMLA) The Family and Medical Leave Act (FMLA) is a federal law that provides sick leave and family and medical leave provisions to certain covered employees. Eligibility requirements for FMLA coverage include: having worked for the employer for at least 12 months having worked at least 1,250 hours for the employer over the previous 12 months work at a location where at least 50 employees are employed by the employer within 75 miles Under the FMLA, covered employees are provided job-protected, unpaid sick leave for at least 12 weeks for specified family and medical reasons. This includes employees who are sick, or serve as caregivers for family members who are sick. Under Title II of the FMLA, most employees of the federal government are covered by paid sick leave provisions similar to those outlined within the recent Families First Coronavirus Response Act. Being Wrongfully Discharged From Your Job Due To COVID-19 Unemployment is a substantial concern as the coronavirus disease continues to take a devastating economic toll on national and global markets. The number of unemployment claims filed by individuals across the U.S. has skyrocketed in recent months as a result of several COVID-19 related reasons, including viability concerns of small businesses and other examples of economic necessity. However, the coronavirus is not an excuse for employers to wrongfully terminate employees who: are suffering a serious medical condition (including the coronavirus) are perceived to be sick with COVID-19 require an extended amount of time to care for a child or family member who is sick with COVID-19 Wrongful termination on the basis of racial, ethnic, or age-related discrimination is also illegal. It is legal at this time for employers to lay off workers on account of economic necessity. What To Do If You Experienced Workplace Discrimination During COVID-19 Workers in all industries—including those deemed essential services—are encouraged to report instances of discrimination and employer misconduct in the workplace. This includes racial discrimination, ADA violations, workplace hazards, and other workplace violations specific to the coronavirus disease (COVID-19). Unlawful discrimination should never be tolerated, and the increased panic surrounding the coronavirus pandemic has unfortunately resulted in greater numbers of discrimination reports and increased vulnerability to wrongful termination. If you believe you’ve been discriminated against by your employer, or have been wrongfully terminated from your job, and wish to take legal action—you have several options for reporting workplace violations. The standard option provided for employees covered under OSHA standards is to file a report with OSHA. However, this may result in a reporting process that is slower than usual, as the agency is frequently overwhelmed by the number of claims it receives on a regular basis. Your best option for reporting coronavirus-related workplace discrimination and seeking legal recourse is to speak to an experienced employment lawyer who can explain your rights as a worker and identify your available legal options based on the details of your case. Consider Filing A Workplace Discrimination Lawsuit If you’ve experienced discrimination in your workplace, you may be eligible to file a workplace discrimination lawsuit. At Florin|Roebig, our employment lawyers have a strong record of aggressively fighting for clients who have been discriminated against on the basis of skin color, ethnicity, sex, age, and disability. Our lawyers have the knowledge, skills, and resources necessary to serve as effective advocates for workers who have been unlawfully discriminated against during this time of international crisis. By filing a lawsuit, our lawyers can help you seek compensation for discrimination-related damages, including lost or missing wages. Time limits may apply to workers who wish to file a lawsuit against their employer for discrimination. Don’t wait to begin your path towards legal recourse. Contact the offices of Florin|Roebig today to schedule a free case evaluation with one our top-rated employment attorneys to discuss the details of your case.