Best-laid plans? Is one state setting up employers for COVID-19 retaliation claims?

And it’s not New York, New Jersey, or California.

Actually, it’s Ohio.

(But, the rest of you should pay attention too.)

On Tuesday, my buddy Jon Hyman blogged here on the Coronavirus Law Blog about a website that the Ohio Department of Job and Family Services has setup to encourage businesses to report workers who refuse available work due to COVID-19 concerns. The employer report would trigger the State review of any employee reported, and may result in loss of unemployment benefits.

Yesterday, Bloomberg Law’s Chris Opfer tweeted a link to the Ohio website where businesses are asked to report “COVID-19 Employee Fraud.” Chris also tweeted a link to this Bloomberg Law article from a colleague, Chris Derr, which indicates that other states are doing the same thing as Ohio.

So, what’s the problem here? Retaliation.

As a matter of law, retaliation occurs when there is a protected activity, followed by a materially-adverse employment action, and a nexus between the two. I’ll explain with a hypothetical:

• An employee suffers from anxiety disorder and the spectre of returning to work triggers the employee’s anxiety.
• So, the employee advises his employer about his condition, that he feels unsafe returning to work, and that he does not want to return yet.
• The employer reports the employee to the state and the employee loses his u/c benefits.

The anxiety disorder may be an ADA disability, FMLA serious health condition, or both. The accompanying request to stay home could trigger a duty to accommodate (or at least an interactive dialogue) or an FMLA request. And maybe the employee has a specific reason why he is afraid to return to work (i.e., not enough hand sanitizer at work, no temperature checks, or other missing prophylactic safety steps). There’s your protected activity.

If the employer reports the employee to the state and he loses u/c benefits, that is a materially-adverse action.

Plus, there is at least the perception (if not the reality) that the employer has retaliated against the employee. So, the employee claims FMLA retaliation, ADA discrimination, and asserts a whistleblower claim.

Win or lose, these are expensive cases to defend.

Both Jon’s post and the Derr article note that states will create exceptions for employees that are unable to return to work, which won’t jeopardize their u/c benefits.

I trust that most employers, especially readers of this blog, would not report employees out of spite. Still, employers that utilize these state-provided reporting services should be aware of their obligations under other federal and state discrimination and leave statutes like the ADA, FMLA, FFCRA. But, providing a Notice of FMLA Rights won’t necessarily disavow an employee of the idea that you retaliated if the company also reports him to the state and he loses his u/c.

Hey, no one said that this was easy.

Therefore, if your business is one of the many that hasn’t already done so, consult an employment attorney to help develop a larger overall return-to-work plan.