Texas employers who have opted out of workers’ compensation coverage may face significantly increased workplace risks in the weeks and months ahead. All employers will face unique challenges due to the risk of workplace exposure to COVID-19. But, the potential liability from COVID-19 workplace illnesses is particularly problematic for Texas employers who have opted out of the workers’ compensation system. Specifically, Texas employers who have opted out of the workers’ compensation system will not have the benefit of workers’ compensation’s preclusive effects. They face the substantial risk that simple negligence will be enough to support employee claims arising from COVID-19 exposure. As a result, it is imperative for opt-out Texas employers to carefully review and update their workplace health and safety practices to maximize mitigation of any risk of workplace transmission of the coronavirus.
Continue Reading Texas employers who do not participate in workers’ compensation face heightened workplace liability risks as employees return from COVID-19 quarantine

As discussed in our client alert addressing the growing COVID-19 crisis, U.S. employers face a number of complicated legal issues as they prepare for the possibility that their workforces will be impacted by the current emergency. In support of that effort, employers should begin preparing to address the following issues.

Before turning to those issues, as mentioned in our previous client alert, employers should strive to make the guiding principles behind all employer responses in this area a combination of compassion for employee impacts and reasonable flexibility. State and federal laws provide many minimum standards, but the best thing an employer can do in the midst of this growing epidemic is to take care of its people. Doing so is not just the right thing to do, but it also encourages employees to be reasonable in return and it mitigates the risk of future conflict with employees or legal exposure.

Continue Reading Employer planning focus points for U.S. impacts of novel coronavirus (COVID-19)

In a case of first impression in New Jersey, the Appellate Division cautioned that employers may only require an employee to undergo a mental health fitness-for-duty examination in limited circumstances.  Relying heavily on the EEOC’s Enforcement Guidance, the Court held that such examinations are only permitted when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”  In the Matter of Paul Williams, Township of Lakewood, 443 N.J. Super. 532, 120 A.3d 593 (Jan. 25, 2016) (emphasis added).

Case Background

Paul Williams (“Williams”) was a truck driver with the Lakewood Township Public Works Department for nine years when, in March 2013, the Township received an anonymous letter allegedly from a co-worker claiming that several employees who worked with Williams were concerned for their safety.  The letter also baldly alleged that “everyone knows [Williams] has some sort of mental issues” that put all of his co-workers “at risk.”  While citing general statistics of workplace violence and describing Williams as a “time bomb waiting to explode,” the only description of any alleged workplace misconduct contained in the letter was an undetailed assertion of “tirades and outbursts” – some of which were purportedly directed towards the union shop stewards.

Continue Reading Objective Basis Needed for Psychological Fitness for Duty Exam