September 16, 2021
May 06, 2020
By Kate Tornone, HRDive
- An employee alleged April 23 that her firing — based on her refusal to work on site during the novel coronavirus pandemic — was inappropriately based on her refusal to engage in illegal activity (Reggio v. Tekin Associates, No. CC-20-01 986-B (Dallas County Court, April 23, 2020)).
- Amy Reggio worked as general counsel for Tekin Associates, according to her lawsuit. As a real estate firm, the employer was not exempt from a county shelter-in-place order, she alleged. Reggio inquired about telework, stating that she did not want to violate the order and risk criminal prosecution. The company’s president allegedly became “belligerent and annoyed by the fact that Plaintiff even communicated her concerns and requested to work from home” and fired her.
- Reggio’s suit alleged that her termination ran afoul of Texas judicial precedent protecting her from “wrongful termination” based on her refusal to engage in illegal activity. She requested a jury trial.
Federal nondiscrimination laws largely protect workers from adverse employment actions based on certain protected characteristics, and those laws could come into play as employers embark on reopenings.
For example, an individual with a disability may be particularly vulnerable to infection, and an employer could need to consider accommodations such as an exception from a recall policy, experts previously told HR Dive. “Employers will see this definition of vulnerable employee again in lawsuits,” David Barron, member of Cozen O’Connor’s labor and employment practice, said. “It will be blown up in front of juries probably for years to come.”
Separately, there’s the Occupational Safety and Health Act (OSH Act), which requires that employers generally maintain worksites that are free of hazards likely to cause death or serious harm and prohibits retaliation against workers who raise safety concerns. “It is easy to see how OSH Act claims related to the coronavirus could arise,” Michael B. Rush, an attorney with Gilbert LLP, wrote in a blog post for the firm.
Employers also must mind the new Families First Coronavirus Response Act, which provides both paid sick and paid caregiver leave, as well as state and local protections, as Reggio demonstrates. There’s a wide “variety of claims an employer might face in the coming months — and years — as a result of the coronavirus,” Rush said.
As employees are increasingly recalled to worksites, experts say HR professionals may need to participate in planning and field worker requests, weighing competing interests and applying policies evenly.
Gilbert LLP is a Washington-based law firm specializing in litigation and strategic risk management, insurance recovery and complex dispute resolution.