The COVID-19 Pandemic: Lessons Learned for Labor and Employment Practitioners.

• Author: Hearing, Gregory A.

On March 13, 2020, President Donald Trump declared the novel coronavirus disease (COVID-19) a national emergency. As state and local governments began implementing vast COVID-19 restrictions on employers and individuals, the whole world shut down. Entire economies reliant on globalization and the workforce stood by helplessly as trade froze and employees were restricted from working. Some Florida employers were suddenly forced to shut down or limit operations and others scrambled to implement government restrictions aimed at limiting the COVID-19 infection rate. While families scavenged for toilet paper, employers large and small faced novel legal challenges, engaging labor and employment practitioners to navigate them through a century-defining pandemic and global emergency. Litigators quickly pivoted from their stalled civil caseload to advising their clients on the many novel issues raised by the COVID-19 pandemic, including issues regarding workplace safety, application of equal employment opportunity (EEO) laws, employer-imposed mandates, teleworking, compliance with federal, state and local laws and executive orders in a pandemic environment, COVID-19-related tort liability, and collective bargaining agreements. Although the pandemic represents a dark period in recent history, there are lessons to be learned from the pandemic that allow labor and employment practitioners to emerge from the receding shadows of the pandemic stronger and well equipped to advise their clients in future emergencies and disasters.

One of the first and most significant lessons for practitioners is, when confronted with unique circumstances and an uncharted legal landscape, to remain current on agency guidance and advise your clients with the ultimate goal of "good faith" compliance with such guidance. In the early days of the pandemic, a practitioner's knowledge of the ever-evolving guidance from the Centers for Disease and Control Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC) was critical to ensuring that employers were implementing practices that minimized their risk of violating OSHA and/or EEO laws.

Although OSHA and the EEOC issued guidance for their respective federal statutes and regulations, the CDC's guidance reigned supreme as both OSHA and the EEOC ultimately relied on the CDC's guidance in developing their own guidance. Accordingly, practitioners were required to gain a comprehensive understanding of CDC COVID-19 general and workplace guidance to ensure full compliance with OSHA and EEOC guidance regarding the pandemic. For instance, OSHA's guidance significantly mirrored the CDC's workplace guidance and even provided links to CDC guidance on the CDC's website. (1)

With respect to OSHA's COVID-19-related guidance, many employers without industry-specific OSHA regulations, such as employers with office environments, were unfamiliar with OSHA's general duty clause, much less its application to their workplace. OSHA's general duty clause provides that "[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." (2) Prudent labor and employment practitioners were quick to educate their clients on the general duty clause and advise their clients on OSHA's general COVID-19 guidance, as well as good-faith compliance with same.

The pandemic is not the only crisis in which employers have a duty to provide a workplace free from certain recognized hazards. This duty is ongoing and employers must consider recognized hazards during any natural disaster, health emergency, and/or similar circumstances. For instance, many Florida employers are grappling with the aftermath of Hurricane Ian, which profoundly impacted a large portion of the state. Although employers may consider the obvious concerns after a hurricane, such as checking on their employees' welfare and advising employees to travel to the workplace only if they can do so safely, employers should ensure that the workplace is free of any recognized hazards covered by the general duty clause prior to employees returning to work. Prudent practitioners should educate and/or remind their clients of such duty when advising their clients during a crisis, including the potential application of specific OSHA standards should employees attempt to engage in post-storm clean up while at work, and the risks involved with employees engaging in work outside of their job duties and qualifications. (3)

Similar to OSHA, the EEOC responded to the pandemic with unprecedented and welcomed transparency by issuing guidance designed to assist employers in navigating the novel...