Avoid retaliation, interference claims during COVID-19 pandemic

During the COVID-19 pandemic, employers must ensure they aren't retaliating against employees in violation of federal, state, and local antidiscrimination laws. Because of the crisis, federal and state governments are expanding protections for employees under new legislation that either amends existing employment laws or creates new statutes benefiting workers. Nevertheless, the amended/new laws will likely apply the same standards (burdens of proof) for retaliation claims.

Retaliation protections in new emergency statutes

The Emergency Family and Medical Leave Expansion Act (EFMLEA) amends the Family and Medical Leave Act (FMLA) to provide a new basis on which an eligible employee can take FMLA leave, i.e., to care for a son or daughter whose school or caregiver is closed or unavailable because of the COVID-19 pandemic. The FMLA, which has been in effect for decades, contains provisions against retaliation and interference that will exist alongside the new EFMLEA provisions and presumably apply to employees exercising EFMLEA rights just as they currently apply to the use of traditional FMLA.

Similarly, the Emergency Paid Sick Leave Act (EPSLA) includes antiretaliation and antidiscrimination provisions. The EPSLA applies to “any private entity or individual” that is engaged in interstate commerce and has “fewer than 500 employees.” The Act includes provisions making it unlawful for an employer to (1) retaliate against an employee who takes leave under the EPSLA or (2) otherwise violate its terms.