By: Darling Gutierrez
The JPMorgan Chase & Co. chief executive officer, Jamie Dimon, says that it is time for the bank’s employees to return to work in person because productivity from home has decreased and the dangers of employees staying homes are too great. The bank has asked its employees to return to work in the office by September 21st, unless they meet certain exceptions (unable to obtain child care or suffer from medical issues). The bank plans to follow a rotational model and have fifty percent of its workforce in the office.
Not long after these orders, it was reported that an employee had tested positive for COVID-19 and the bank sent the employees in that office home. It seems likely that now since a prominent bank has ordered its employees back to the office, many other employers will feel the pressure to follow the trend. For example, Goldman Sachs CEO, David Solomon, agreed with Mr. Dimon and recently announced that its bank’s employees will also start returning to the office.
There are many things that employers have to take into account when considering whether they will reopen their offices, including: the resources needed to provide employees with what is necessary for hygiene purposes, how to handle employees who refuse to return to work or cannot return to work, assessment on how employees can be exposed and how to prevent occupational exposure, the arrangements that will be made to allow for social distancing and how or whether the employees will be tested or screened before they return to work and once they return to work.
The trend of shifting from remote work to in-person work is also affecting employees; employees do not feel safe commuting to work or working with colleagues in person. Employees fear that employers are putting their business and profits ahead of the safety of the employees. There can also be backlash from employees and the public for pressuring employees to return to work. For example, Epic Systems was forced to delay its plan for employees to return to work after receiving such backlash.
As COVID-19 continues to spread, employers face many challenges, including legal risks. Employers may face lawsuits with employees “demanding safer working conditions or compensation for lost wages and medical bills.” There have already been wrongful death, wrong termination and negligence lawsuits brought by the families of employees that lost their lives to COVID-19, with allegations that the employer did not do enough to protect their employees from contracting COVID-19. Employees who have survived after contracting COVID-19 have also sued their employers for damages, medical bills and future earnings lost due to being sick.
Many experts expect for there to be a shift in the litigation against employers; with many predicting that these new suits will involve discriminatory layoffs, disability bias, unpaid wage claims, reimbursements for business expenses, and family and sick leave. There could also be lawsuits related to whistleblowing complaints and sexual harassment and other harassment complaints as employees readjust to working in the workplace and learn to abide with social distancing guidelines.
According to the CDC guidelines for opening office buildings, employers are responsible for providing a “safe and healthy workplace.” It has been difficult for employers and employees alike, and some have claimed that the government departments in charge of workers’ health and safety have failed to police worker safety during the pandemic and ignored employee complaints. The AFL-CIO filed a petition against the Occupational Safety and Health Administration (OSHA) to compel the department to issue regulations to protect workers. OSHA has not released an Emergency Temporary Standard, to this date and only suggested recommendations have been released, despite multiple members of the U.S. House of Representatives calling for OSHA to release an emergency temporary standard to protect workers.
Many are hoping Congress will provide immunity to employers from being sued if their employees get sick during future outbreaks. The biggest concern with this proposition is that employers would be disincentivized from providing a work space that will protect their employees and workplace standards would be very low. There is also a question of whether employers should be protected if a customer is exposed at an establishment because an employee was sick. Those calling for protections to businesses argue that it will stop small businesses from having to shut down completely because of lawsuits and hurt the economy. The argument against these protections are workers and customers will be left vulnerable if businesses take advantage of the protection and therefore should have the right to sue. All businesses are worried about the consequences, especially small businesses who may not be making as much profit or may be experiencing losses due to having to shut down.
 Michelle F. Davis and Katherine Burton, JPMorgan Chief Jamie Dimon Fears Long-Tem Effects of Working From Home, The Sydney Morning Herald (Sept. 16, 2020) https://www.smh.com.au/business/the-economy/jpmorgan-chief-jamie-dimon-sees-long-term-damage-if-people-don-t-return-to-work-20200916-p55w0s.html.
 Julia-Ambra Verlaine, JPMorgan Top Brass Tell Trading-Floor Staff to Come Back to the Office, The Wall Street Journal (Sept. 10, 2020) https://www.wsj.com/articles/jpmorgan-top-brass-tell-trading-floor-staff-to-come-back-to-the-office-11599757313.
 Hugh Son, JPMorgan Will Have Staff Cycle Between Office and Remote Work in a Move that May Remake Wall Street, CNBC (Aug. 25, 2020) https://www.cnbc.com/2020/08/25/jpmorgan-will-have-staff-cycle-between-office-and-remote-work-in-a-move-that-may-remake-wall-street.html.
 Lisette Voytko, JPMorgan Reportedly Sends NYC Workers Home As Employee Tests Positive For COVID-19, Forbes (Sept. 15, 2020) https://www.forbes.com/sites/lisettevoytko/2020/09/15/jpmorgan-reportedly-sends-nyc-workers-home-as-employee-tests-positive-for-covid-19/#5de48cdd4894.
 Son, supra note 3.
 Hugh Son, Goldman Sachs Joins JPMorgan in Saying Wall Street Workers Will Return to the Office in Rotations, CNBC (Sept. 9, 2020) https://www.cnbc.com/2020/09/09/goldman-sachs-joins-jpmorgan-in-saying-wall-street-workers-will-return-to-the-office-in-rotations.html.
 Reopening the Economy in the Midst of COVID-19: What happens if an Employee Refuses to Return to Work?, The National Law Review (Apr. 17, 2020) https://www.natlawreview.com/article/reopening-economy-midst-covid-19-what-happens-if-employee-refuses-to-return-to-work.
 U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Law, U.S. EEOC(Sept. 8, 2020) https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
 Centers for Disease Control and Prevention, Employer Information for Office Buildings, CDC (Sept. 11, 2020) https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html#:~:text=CDC%20recommends%20wearing%20a%20cloth,spreading%20it%20to%20others.
 U.S. EEOC, supra note 9.
 Christina Farr, Drugmaker AbbVie Pressures Reluctant Employees to Return to Work, Raising Safety Questions, CNBC (Sept. 11, 2020) https://www.cnbc.com/2020/09/11/pharmacabbvie-employees-raise-safety-concerns-with-return-to-work-plans.html.
 Christina Farr, Epic Systems Walks Back Plans Requiring Thousands of Employees to Return to Work this Week, CNBC (Aug. 10, 2020) https://www.cnbc.com/2020/08/10/epic-systems-walks-back-plans-requiring-employees-to-return-to-work.html.
 Erik Larson, Legal Risks Abound When Companies Bring Their Employees Back, Bloomberg Law (Jun. 12, 2020) https://news.bloomberglaw.com/us-law-week/legal-risks-abound-when-companies-bring-their-employees-back.
 Janet Adamy, Families File First Wave of COVID-19 Lawsuits Against Companies Over Worker Deaths, The Wall Street Journal (Jul. 30, 2020) https://www.wsj.com/articles/families-file-first-wave-of-covid-19-lawsuits-against-companies-over-worker-deaths-11596137454; Braden Campbell, The Next COVID-19 Employment Litigation Hotbeds, LAW360 (Sept. 16, 2020) https://www.law360.com/employment/articles/1309410/the-next-covid-19-employment-litigation-hotbeds-?nl_pk=ae38c76b-a354-4204-a690-87a8bdcf2318&utm_source=newsletter&utm_medium=email&utm_campaign=employment.
 Adamy, supra note 18.
 Campbell, supra note 18.
 Michael Savage, A Return to Work is on the Cards. What are the Fears and Legal Pitfalls?, The Guardian (May 10, 2020) https://www.theguardian.com/world/2020/may/09/coronavirus-return-to-work-employment-law-logistical-nightmare.
 CDC, supra note 11.
 Larson, supra note 16; AFL-CIO Sues OSHA for Emergency Temporary Standard to Protect Workers, AFL-CIO (May 18, 2020) https://aflcio.org/press/releases/afl-cio-sues-osha-emergency-temporary-standard-protect-workers.
 AFL-CIO, supra note 23.
 OSHA, supra note 7.
 COVID-19 Pandemic: Republican House Members Call for OSHA Emergency Standard, Safety+Health (Jul. 15, 2020) https://www.safetyandhealthmagazine.com/articles/20076-covid-19-pandemic-republican-house-members-call-for-osha-emergency-standard.
 Larson, supra note 16.
 Ellen Sheng, As America Reopens, Prepare for a Flood of Coronavirus Workplace Lawsuits, CNBC (May 20, 2020) https://www.cnbc.com/2020/05/20/as-us-reopens-prepare-for-flood-of-coronavirus-workplace-lawsuits.html.
 Amber Phillips, Should Congress Protect Businesses from Coronavirus Lawsuits?, The Washington Post (May 8, 2020) https://www.washingtonpost.com/politics/2020/05/08/lawsuit-coronavirus-congress/.
 Sheng, supra note 28.