National Labor Relations Board General Counsel Peter Robb sent a clear warning to employers to tread carefully in using pandemic related issues as cover to mistreat employees. Robb released a memo outlining nine recent cases in which the NLRB took employers to task. The indication is that Robb, who has favored employer-friendly policies, will not uniformly defer to businesses in their response to Covid-19.
This is only one small slice of the pandemic-modified legal landscape facing employers at the moment. It is expected that there will be a wave of lawsuits alleging employer misconduct in relation to issues such as pre-existing medical conditions, failure to take safety precautions, and various combinations of these and similar matters. Lawmakers appear to be doing their best to address these unprecedented concerns. Meanwhile the best defense appears to be following governmental agency guidance from organizations such as the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) in making workplace decisions in the context of COVID-19.
The Department of Labor recently made further revisions to the Families First Coronavirus Response Act (FFCRA). The revisions included:
- Employees may take FFCRA leave only if work would otherwise be available to them.
- An employee must have employer approval to take FFCRA leave intermittently.
- The rule is expanded to cover more healthcare employees.
- Employees must provide required documentation supporting their need for FFCRA leave to their employers “as soon as practicable,” correcting an inconsistency between the Act and the Department’s rule
