COVID discrimination issues West Palm Beach businesses will encounter in 2021
As a Florida employment discrimination lawyer that represents only Florida businesses, including those located in West Palm Beach, David Miklas regularly advises WPB companies on issues related to employment discrimination.
Many of my West Palm clients are Human Resources professionals who contact me on behalf of their West Palm Beach, FL businesses. They are asking, what are the most dangerous areas of employment law for 2021.
In 2021 the biggest danger areas for employment discrimination lawsuits in West Palm Beach will be those adverse employment actions (e.g. terminations and demotions) that are based on COVID-19 related reasons, but also implicate protected conduct, such as disability discrimination, age discrimination, and various types of employment retaliation.
Many West Palm Beach employees who have been fired are already searching the internet for terms such as, employment discrimination attorney West Palm Beach and COVID discrimination at work West Palm Beach.
I have found that many business owners in the West Palm area have been struggling with keeping their businesses operating and they have not been able to keep up with the new COVID-related laws and guidance. Many WPB companies do not even have a dedicated, experienced human resources professional that can assist them. Those businesses that may have HR, often give that employee so many other tasks that they become a jack-of-all trades, and master of none. They often are ill equipped to handle even basic HR functions, much less, complicated issues such as terminations and handling employees who test positive for COVID. As an example, many WPB companies are unaware that there is a law called the Families First Coronavirus Response Act (FFCRA) that took effect in April 2020 which requires most West Palm businesses to provide their employees with paid leave for certain COVID-related reasons. Some who are aware of this law may not realize that even after the law’s requirements end on December 31, 2020, the WPB company may still have legal liability for years. This is something that an experienced employment lawyer can assist with to help correct issues, and to reduce legal liability.
Rather than providing employees with the required paid leave under the FFCRA, I have found that many West Palm Beach companies have become upset with employees who complain about COVID safety and they have fired the employees. These West Palm Beach business owners are often unaware of Florida employment discrimination laws, including those related to the coronavirus. Many West Palm Beach business owners fail to contact an employment discrimination lawyer or a COVID discrimination lawyer. This mistake often results in the company firing an employee when they should not have terminated the employee. A West Palm Beach employee may then file a charge of discrimination related to COVID or may file a complaint with the Department of Labor in relation to a COVID-related issue. There are federal laws that employees can use to sue their West Palm Beach employers in relation to terminations related to COVID.
Many West Palm Beach companies are unaware of the Florida anti-discrimination employment laws and do not consult with an experienced employment discrimination attorney. This often results in making mistakes that end up costing the business more money, because the company fails to avoid litigation.
Often times a West Palm Beach business may open itself up to a lawsuit based on age discrimination, disability discrimination, gender discrimination or even pregnancy discrimination when they fire an employee related to COVID.
This is because West Palm Beach business owners often may not understand that if they fire an older employee who is concerned about returning to the workplace, that may trigger an age discrimination lawsuit. Although older workers may be more susceptible to COVID and other COVID-related conditions, that does not justify your business discriminating against the older worker for such things. You should work closely with an experienced employment discrimination law firm to help you navigate the nuances of employment laws.
Also, another dangerous area for West Palm business owners is when they terminate an employee who is disabled and is concerned about COVID precautions that the business is taking. Many employees may qualify as disabled under the Americans with Disabilities Act and that could create legal obligations for business owners in West Palm Beach. Companies may have a duty to engage the employee in an interactive process to determine whether the business can provide a reasonable accommodation, such as telework, that would allow the employee to be able to perform the essential functions of the job. If the WPB business does not follow certain steps, it may result in a lawsuit for disability discrimination, or at the very least, an EEOC charge of discrimination based on disability discrimination or retaliation. Sometimes an employee’s serious health condition may trigger an obligation on the part of a business to provide that employee with FMLA leave. Even if your West Palm Beach company does not have 50 employees, it still may have obligations under the Expanded FMLA and EPSL provisions of the FFCRA. These obligations may require your business to provide two weeks of full pay leave for certain COVID related reasons. Further, some employees with a child may be entitled to an additional 10 weeks of expanded FMLA leave, which must be paid at 2/3 pay. The specific facts in your situation should be discussed with an employment lawyer to help you properly comply with this Coronavirus leave law.
Some West Palm Beach companies may create legal liability if they terminate female parents or pregnant women because of unfounded fears related to COVID. For example, if the West Palm Beach business decides to terminate a pregnant woman because it is concerned about legal liability related to the woman’s health and the health of her baby due to COVID, that could trigger a gender discrimination lawsuit. Also, if a WPB company refuses to provide a working mother paid leave to help care for her child because the child’s school or place of care is closed due to COVID, that could be a violation of the FFCRA.
Many employees who work for businesses located in West Palm Beach are aware of the Families First Coronavirus Response Act (FFCRA) and they question their employer about their right to paid leave under that new law.
Some WPB businesses have even observed discrimination against Asian employees related to the Coronavirus. Some co-workers may be discriminating against Asian employees because they incorrectly believe that the Asian employee is somehow to blame for COVID-19 infecting West Palm Beach workplaces. Discrimination against Asian employees may allow the employee to file a charge of discrimination with the EEOC for national origin discrimination. If the WPB business owner makes derogatory remarks against Asians, such comments can be used as direct evidence of discrimination based on the employee’s national origin.
West Palm Beach business owners should understand that a COVID discrimination claim does not only have to be based on the Families First Coronavirus Response Act. An employee can sue your West Palm Beach business, claiming they suffered discrimination during COVID-19. They may claim a COVID discrimination case against your WPB business based on various grounds, such as a violation of the Americans with Disabilities Act (disability discrimination), a violation of Title VII of the Civil Rights Act for such things as gender discrimination, a violation of the Age Discrimination in Employment Act (ADEA) for age discrimination, and also a violation of Florida’s Civil Rights Act.
As you can see, claims of COVID employment discrimination may often be other type of employment discrimination claims that rely on COVID-19 facts. Therefore, a COVID discrimination case, may also be an ADA discrimination case, or a Title VII discrimination case.
Some COVID-19 discrimination claims will be based on the Fair Labor Standards Act (FLSA). This is something that West Palm Beach business owners should be concerned about. The FLSA is already the most frequent type of employment lawsuit that West Palm businesses have to deal with. This is because the FLSA allows an employee’s lawyer to recover their reasonable attorneys’ fees if they are successful in the FLSA claim. There are various types of FLSA lawsuits that can be brought against WPB businesses. If a West Palm company fails to provide an employee with Emergency Paid Sick Leave under the FFCRA, either the Department of Labor (DOL) or a lawyer can bring a claim against the WPB business. The DOL may conduct an investigation that spills over into all of your company’s employees. Similarly, a lawyer who sues your WPB company for FFCRA violations may be able to force you to provide various internal documents related to employees. As you can see, COVID discrimination in the workplace, may be similar to a regular wage and hour claim. So, a COVID discrimination lawsuit against a West Palm Beach employer may be a FLSA lawsuit or it may be an ADA lawsuit or a Title VII lawsuit or even an ADEA lawsuit.
COVID discrimination lawyers around West Palm Beach are learning about COVID-19 discrimination law and will be bringing COVID-19 discrimination lawsuits against many businesses located in West Palm Beach and Palm Beach County.
Some of these lawsuits will involve situations where a WPB company fires an employee shortly after that employee complains about PPE or other COVID-related issues, such as FFCRA paid leave. There may be COVID mask discrimination lawsuits against West Palm Beach employers where an employee desires to wear a face mask to protect themselves against COVID and the employer refuses. Sometimes an employee may quit in such a situation and claim that their termination was a constructive termination and blame the employer for the end of their employment. Although there may be defenses to such claims, it is always better for a West Palm Beach company to consult with an experienced employment lawyer as these type of issues arise.
For example, many WPB companies are dealing with bringing employees back to the workplace. Some of these employees are afraid of coming back to work. WPB employers need to know whether an employee’s fear is protected or not. Also, the CDC has been providing a lot of Guidance as to how to handle various type of situations in the workplace. A claim of COVID discrimination in the workplace may be brought against a WPB company for not complying with CDC guidance. There can even be claims of COVID return to work discrimination that are brought against West Palm companies.
If you need any assistance with COVID-19 issues for your workplace, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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