The COVID-19 Pandemic: Lessons Learned for Labor and Employment Practitioners
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.
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.” 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.
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 EEO-related issues raised by the pandemic. Practitioners and employers relied heavily on such guidance in navigating initial COVID-19 EEO issues. In particular, practitioners discovered that the best course of action in advising their clients regarding such issues was to develop a comprehensive understanding of the EEOC’s guidance and, when an employer’s situation fell outside of the express guidance, tailor advice to the employer in a manner which allowed the employer to show a good-faith effort at compliance.
Significantly, the EEOC’s guidance paved the way for COVID-19 workplace screenings, such as temperature checks, questions regarding COVID-19 symptoms, COVID-19 testing, and COVID-19 diagnostic inquiries. The agency’s designation of COVID-19 infection as a direct threat to the workplace facilitated such guidance and provided practitioners with a solid legal foundation to advise employers that they could bar employees with COVID-19 and/or employees who refused to participate in COVID-19 screening from the workplace, as well as those employees exhibiting COVID-19 symptoms.
Ultimately, the EEOC’s transparency, along with that of other federal agencies, allowed practitioners to provide much-needed legal advice to employers eager to comply with EEO laws. Practitioners can only hope that federal agencies will continue to provide similar support to employers during future crises as the pandemic taught practitioners and employers that they can work together in a symbiotic relationship with federal agencies to ensure compliance with EEO and other federal laws during uncertain times.
With respect to employer-mandated COVID-19 vaccinations, labor and employment practitioners learned that legal advice during a crisis is fluid and subject to change overnight with targeted executive action and legislation. Some employers have required employees to receive certain vaccinations for years. For instance, it is common for healthcare employers to require annual flu vaccines. As the pandemic persisted, it led to growing business disturbances and employers became desperate to protect their employees and customers. Naturally, some employers turned to their labor and employment counsel for assistance in planning and implementing mandatory employee vaccinations once the COVID-19 vaccine was readily accessible to the public. The EEOC’s COVID-19 guidance reiterated that employer-implemented COVID-19 vaccine mandates do not violate Title VII or the ADA so long as employers reasonably accommodate employees with a disability, pregnancy, or a sincerely held religious belief. However, the EEOC cautioned that employer-administered, pre-vaccination screening questions regarding an employee’s family medical history may implicate the Genetic Information Nondiscrimination Act (GINA).
On April 2, 2021, Gov. Ron DeSantis issued Executive Order No. 21-81, banning vaccine passports in Florida and prohibiting businesses from requiring customers and patrons to provide proof of COVID-19 vaccination. Notably, EO 21-81 did not prohibit employers from implementing vaccine mandates. However, Gov. DeSantis signed S.B. 2006 into law on May 3, 2021, which essentially codified EO 21-81 and imposed additional vaccine prohibitions on Florida’s business, governmental, and educational entities. Specifically, S.B. 2006 appeared to prohibit government employers from implementing employee COVID-19 vaccination mandates. Indeed, Attorney General Ashley Moody filed an amicus brief of the state of Florida in support of plaintiffs in Darris Friend, et al. v. City of Gainesville, No. 221-CA-2412 (Fla. 18th Cir. Sept. 13, 2021), a lawsuit in which the plaintiffs, city employees, sought and obtained a temporary injunction enjoining the city from enforcing its vaccine mandate. In her brief, Moody asserted that the statute applies to government employees.
The Florida Legislature cleared up any ambiguity for public employers when it enacted H.B. 1-B during its special session in November 2021. The law implemented F.S. §112.0441, which expressly prohibits public employers from imposing COVID-19 vaccination mandates on their employees. H.B. 1-B also created F.S. §381.00317, which prohibits private employers from implementing COVID-19 vaccination mandates without providing for the following five individual exceptions: 1) medical exemption (including pregnancy or anticipated pregnancy); 2) religious exemption; 3) COVID-19 immunity exemption; 4) periodic testing exemption; and 5) PPE exemption.
While H.B. 1-B settled the vaccine mandate issue for public employers, private employers were thrust into a legal conundrum when OSHA issued its vaccine mandate on November 5, 2021, pursuant to its rulemaking authority. OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) would require employers with 100 or more employees to implement mandatory vaccination policies without providing for all five exceptions enumerated in F.S. §381.00317. Although prudent practitioners may advise their clients on the conflicting requirements between the Florida law and OSHA’s ETS and the potential preemption issues at play, practitioners are unable to make business decisions for their clients and may only advise their clients on the legal implications of such decisions. Accordingly, Florida’s private employers with 100 or more employees were left with a difficult business decision — fully comply with the Florida law and risk an OSHA violation, or fully comply with the OSHA ETS and potentially incur a $50,000 fine per each individual violation of §381.00317.
Ultimately, Florida’s private employers were spared from the potential consequences of such a difficult decision when the U.S. Supreme Court stayed OSHA’s ETS on January 13, 2022, “pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari.” OSHA subsequently withdrew the ETS on January 26, 2022.
These events taught practitioners an important lesson — when a state law and a federal rule conflict and both carry significant penalties for noncompliance, practitioners should advise their clients to consider prioritizing compliance with the requirements presently in effect and enforced. For instance, many employers were preparing to start implementing OSHA’s vaccine mandate on January 4, 2022, the compliance deadline contained in the ETS. However, OSHA issued a news release on December 18, 2021, in which OSHA announced that, due to the uncertainty caused by challenges to the ETS, it was postponing implementation and enforcement of the vaccination mandate until January 10, 2022. Thus, an employer that implemented the ETS requirements on January 4, 2022, risked violating F.S. §381.00317, and potentially incurring substantial financial penalties, without being subject to OSHA’s enforcement of the vaccine mandate. Moreover, it was unclear how successful a preemption argument may have been for employers which chose to fully comply with OSHA’s ETS, and not §381.00317, during a period in which OSHA was not implementing or enforcing its ETS. Accordingly, Florida’s private employers subject to OSHA’s ETS wishing to minimize their legal exposure were well advised to proceed with implementing a mandatory COVID-19 vaccination policy that fully complied with §381.00317, as well those parts of OSHA’s ETS, which did not conflict with §381.00317, until the U.S. Supreme Court issued its ruling.
The pandemic also illustrated Florida employers’ need to have teleworking policies in place for emergency situations, such as a public health crisis. Such policies may also be necessary in natural disasters, such as hurricanes, where employees are unable to safely travel to the office and may perform certain duties from home, or even unexpected situations where the workplace is inaccessible due to circumstances outside of an employer’s control. Regardless of the unexpected reasons why an employer may need its employees to suddenly telework, practitioners discovered that many Florida employers did not have teleworking policies. Accordingly, practitioners should consider including teleworking policies as they prepare employee handbooks for their clients.
As practitioners draft such policies, it is important for them to carefully consider the implications an employer’s teleworking policy may have on employees’ requests for a reasonable accommodation under the ADA. For instance, an employer choosing to temporarily excuse an employee from performing one or more essential job functions while the employee teleworks during an emergency is not required to excuse the performance of an essential job function to accommodate an employee’s disability. Accordingly, if a policy allows an employee to telework during an emergency without the employee fulfilling all of his or her essential job functions, the policy should expressly provide that such exception applies only during the emergency until the employer directs employees to return to the workplace. Such express policy language establishes the limitations on the employer’s temporary excusal of essential job functions and distinguishes the excusal from instances where an employee seeks to continue teleworking as a reasonable accommodation after the employer recalls its employees back to the workplace.
Including a “return-to-work” provision in a teleworking policy is also essential for employers wishing to return employees to the workplace as soon as the precipitating circumstances subside. Returning employees to the workplace in a prompt and orderly manner may additionally reduce employee resistance to reinstituting in-person work and may boost employee morale by ensuring that the return to work is uniform among all departments. Otherwise, employers may inadvertently foster inter-departmental animosity among employees.
Some public employers are actually required to have comprehensive teleworking policies in place. Specifically, F.S. §110.171 requires “any official, officer, commission, board, authority, council, committee, or department of state government” to develop “an agency plan that addresses the agency’s telework policies and procedures.” The statute enumerates multiple plan requirements, including but not limited to, policies that establish performance standards and a system for ensuring employee productivity.
Telework policies for both private- and public-sector employers should also include comprehensive language regarding FLSA non-exempt employees’ working hours and time recording procedures. Indeed, teleworking employees may be more likely to work off the clock such as during lunch breaks or answering emails after working hours than employees working in an employer’s workplace. Accordingly, practitioners should draft telework policies to specifically address such issues and advise clients to strictly apply their policies to avoid potential FLSA liability.
The pandemic’s teleworking trend also raised the issue of workers’ compensation claims arising out of employee injuries occurring outside an employer’s workplace. Prior to the pandemic, practitioners relied on cases such as Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. 1st DCA 2019), in order to advise clients on the potential for workers’ compensation claims arising out of telework. In Valcourt-Williams, an employee working from home tripped over her dog and fell while getting a cup of coffee in her kitchen. The fall resulted in injuries to the employee’s knee, hip and shoulder. The employee sought workers’ compensation benefits because the injuries occurred during working hours. The judge of compensation claims (JCC) determined that the employee’s injuries were compensable because the employee’s work environment was “imported” into the employee’s home environment.
In reversing the JCC’s decision, the First District Court of Appeal explained that the proper question is “whether the employment…necessarily exposes the claimant to conditions which substantially contribute to the risk of injury.” The First DCA went on to hold that the risk of tripping over a dog while getting coffee was not introduced by the employee’s employment. Significantly, the First DCA noted that the employee could have just as easily tripped over her dog while reaching for coffee during non-working hours on a Saturday and that the risk existed as long as the dog remained in the employee’s house. The First DCA explained that finding such an injury compensable would require setting “aside the ‘arising out of’ limitation the Legislature enacted” in F.S. §440.09(1).
Recently, in Soya v. Health First, Inc., 337 So. 3d 388 (Fla. 1st DCA 2022), the First DCA declined to extend its holding in Valcourt-Williams. In Soya, a massage therapist tripped and fell while walking from the massage room to the women’s locker room at her place of employment. An engineer conducted a thorough investigation of the area where the therapist tripped and found no anomalies “and noted that [the floor] was slip-resistant.” Accordingly, the cause of the therapist’s fall was “unknown.” In denying the therapist’s workers’ compensation claim, the JCC tracked the Valcourt-Williams decision’s
language almost exactly in reasoning that the injury did not arise out of employment because ‘an accident is compensable under Valcourt only if the employment necessarily exposed the claimant to conditions that would substantially contribute to the risk of injury to which the [c]laimant would not normally be exposed during her non-employment life.’
The First DCA reversed the JCC’s ruling, explaining that the Valcourt-Williams analysis “applies only where there is a contributing cause outside of employment (e.g., the dog)” and not in instances in which the cause of the injury is unknown. The First DCA did not identify the employee’s work environment, such as telework versus in-person work, as a distinguishing factor in determining whether the Valcourt-Williams analysis applies. Accordingly, it remains to be seen whether the courts will apply Soya in instances where an employee is working from home and the cause of the injury is unknown.
The pandemic raised many novel issues and considerations for labor and employment practitioners. While the foregoing only represent a fraction of such issues and considerations, they all share a common lesson. When a crisis interacts with the labor and employment legal landscape and creates legal uncertainty, practitioners must remain updated on all developments regarding issues important to their clients so that they may provide the best and most effective advice possible, as even a simple press release from OSHA regarding ETS enforcement may drastically change a practitioner’s client advice. Practitioners must adapt to the rate of rapidly developing information during a crisis to discern the appropriate advice to their clients. Practitioners should also focus on issues such as teleworking and apply lessons learned from such issues now via policy implementation so that their clients are better prepared for the next public emergency.
 See U.S. Dept. of Labor Occupational Safety and Health Administration, Frequently Asked Questions (Sept. 30, 2022), https://www.osha.gov/coronavirus/faqs#vaccine.
 29 U.S.C. §654(a).
 See, e.g., 29 C.F.R. §1910.266 (OSHA’s logging operations standard).
 See U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Oct. 1, 2022), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
 S.B. 2006, 123d Leg. Reg. Sess. (Fla. 2021).
 Amicus Br. of the St. of Fla. in Support of Pls. at 4 (Sept. 13, 2021), Friend, et al. v. City of Gainesville, No. 221-CA-2412 (Fla. 18th Cir. Sept. 13, 2021).
 2021 Fla. Sess. Law Serv. Ch. 2021-272 (H.B. 1-B) (WEST).
 86 Fed. Reg. 61402 (2021); see Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 663-64 (2022).
 Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 666-67.
 87 Fed. Reg. 3928 (2022).
 U.S. Department of Labor, Statement from the US Department of Labor on the 6th Circuit Court of Appeals Dissolving the Stay of OSHA Emergency Temporary Standard on Vaccination and Testing (Oct. 21, 2022), https://www.dol.gov/newsroom/releases/osha/osha20211218.
 See note 4.
 Fla. Stat. §110.171 (2022).
 Valcourt-Williams, 271 So. 3d at 1133.
 Id. at 1134.
 Id. at 1137-38.
 Id. at 1137.
 Soya, 337 So. 3d at 389.
This column is submitted on behalf of the Labor and Employment Law Section, Sacha Dyson, chair, and Alicia Koepke, editor.