A Conversation With: Rebecca Warren of Norris McLaughlin in Allentown

The Honorable Rebecca Warren (Ret.), a member at the law firm of Norris McLaughlin, devotes her practice to labor and employment, business and corporate matters, and general liability litigation. She was a former in-house corporate attorney and having counseled businesses for over 25 years and is a former prosecutor.

 LVB: What is the single biggest legal concern business should have at this phase of the COVID-19 pandemic?

Warren: Every business should ensure that they have a legally compliant COVID-19 Action Plan in place, along with a named Pandemic Safety Officer.

As a result of the ever-changing orders issued by the Pennsylvania Governor and Secretary of the Department of Health, businesses need to be able to pivot quickly.  One moment we are in the green phase and the next we have reverted to a new form of yellow.  Businesses should expect that more changes are in store.  A solid plan for each phase will allow a business to react as swiftly, efficiently, and effectively as is possible under the circumstances.

 LVB: Are there legal issues that you are concerned businesses are overlooking?

Warren: Yes.  There are many legal issues created by COVID-19.  Three that I have seen repeatedly are FFCRA Benefits — When an employee refuses to return to work, they may actually qualify for mandatory benefits under the Families First Coronavirus Response Act.  FFCRA seems like it was passed ages ago when many businesses were closed or had furloughed employees.  As a result, FFCRA did not apply to the business at that time and was overlooked.  However, FFCRA is in effect through December 31 and employers must engage in the interactive process with employees who mention a situation that may trigger eligibility for FFCRA sick leave or family medical leave benefits.

The need for a Pandemic Safety Officer — In speaking with many business owners, it seems as though many are unaware of the requirement in Pennsylvania to name a Pandemic Safety Officer prior to re-opening.  Name your PSO and communicate the contact information to your employees.

Use of Loan Proceeds — Many businesses have received loans through the Paycheck Protection Program and the SBA Economic Injury Disaster Loan.  Do not use the EIDL monies for PPP allowable categories to avoid disqualification of loan forgiveness.  Ensure that you read the restrictions regarding use of any loan proceeds and follow those guidelines.

LVB: What are some legal issues with the workforce returning to in-person work? What about with those who don’t want to return to the office because they don’t feel safe?

Warren: In counseling businesses on return to work issues, I have repeatedly heard two main concerns expressed: co-workers failing to abide by the social distancing and CDC guidelines, and co-workers’ belief that allowing some, but not all, employees to work remotely is unfair.  Businesses need to be proactive in clearly communicating the reason for staff assignments and the required protocols, as well as enforcing these requirements.  Again, implementing a COVID-19 Action Plan will assist with addressing such issues.

A generalized fear of returning to the workplace will not insulate an employee from termination.  However, as mentioned earlier, if an employee’s refusal to return to work is legitimately grounded in a FFCRA-eligible reason, an employee is entitled to that benefit.

LVB: Safe Harbor protections for businesses during COVID-19 is a hot topic. What do you see as the positives and negatives of such protections?

Warren: Safe Harbors have been instituted for businesses with regard to employee retention and reinstatement under the PPP loan forgiveness.  This realistic approach to circumstances is a positive for businesses and our economy.

There is discussion of implementing safe harbors for business liability related to customers contracting COVID-19.  Although a person may be precluded from recovering for their injury, a positive effect would be less lawsuits and burden on the courts arising from a widespread contagion that cannot be completely prevented.

At the end of the day, I think we have to remember that businesses are already struggling to survive in this COVID-19 era.  A lawsuit filed against a business already crippled by COVID-19 may very well be its death knell.