With the outbreak of COVID-19, all have been impacted, particularly in the workplace. Many have been furloughed or laid off. Others have transitioned to work-from-home, and essential workers have had to find ways to safely continue to go to their workplaces. All of these situations create some new and unique questions related to employment law and related changes to the eDiscovery landscape. Below, we will examine some of those questions and some impacts and even some eDiscovery related solutions that employers and employees should be thinking about, especially as many now move forward with returning to work or make the decision to permanently work remotely.
Employment Law Impact
Logistics of Managing Returning Workers
As employees return to the physical workplace, employers will have several considerations related to keeping those employees safe. How can space be reconfigured to maintain proper social distancing, and what rules or standards need to be adjusted to ensure the same? Further restrictions may be mandated by state and local phases/orders. In locations where there is shared workspace or office space, employers may consider in person work on alternating days or weeks or on staggered schedules to avoid overcrowding that better accommodate proper physical distancing. Also, in the even that an employer decides to require symptom checks, a few things must be considered. First, what type(s) of checks (temperature, symptom questionnaire) will be done and how often? Second, who will be responsible for the documentation and administration? Finally, how will the records be maintained?
Employers should also consider limiting or restricting access to common and shared areas in the workplace such as break rooms, conference rooms, elevators and rest rooms. If an employer chooses to limit access to break rooms, they should ensure that employees have alternative options to take uninterrupted breaks and have access to spaces to have lunch. Businesses located in office buildings must also consider things such as how employees can maintain social distancing while taking elevators. Limitations for maximum persons in areas such as restrooms may also be necessary. Further, the CDC has issued some guidelines in order to mitigate the chances of spreading COVID-19 in the workplace:
- wearing masks/face coverings where social distancing is not possible or unlikely to be effective
- social distancing during shift changes/breaks
- instructing employees not to use other employees’ workspaces or equipment
- displaying markings or signs reminding customers and employees to maintain physical distancing
- holding fewer in-person meetings and using increased conference calls or video conferences
Employees Who Refuse to Return Due to Safety Concerns
While employers have rights to force employees to return to work, there is likely to be some resistance from some employees. Employers should consider several things in these situations, including the following: does the employee’s work require them to be onsite; can the employee effectively perform their job from home; and are certain employees at elevated risk due to underlying conditions. Even when employees are not considered to have elevated risk or underlying conditions if they contract COVID-19, some employees may be reluctant or may even refuse to return to work because of fear for health and safety or childcare/school obligations. Clear communication and flexibility (when practical) are imperative in these situations.
Depending on the size of the workforce, there could also be legal implications involved. Employers with fewer than 500 employees may be required to provide paid or partially paid leave to employees who are unable to return to work under the Families First Coronavirus Response Act (FFCRA).[1] Employers who have more than 500 employees or are exempted from the FFCRA may still be required to provide medical leave based on laws in their jurisdictions. They may also be required to provide leave under the Family and Medical Leave Act (FMLA), the ADA or other state or local law equivalents. Employers should develop uniform criteria to consider when evaluating requests for leave to avoid potential claims of unfair treatment or discrimination.
Changes in eDiscovery
With the shift from business as usual in the work environment, there are many eDiscovery related considerations that should be addressed. We will look at a few of them here. First, with the transition away from the office to working from home, there has been an uptick in ESI data sources that were previously less utilized. The increase in use of various messaging applications, video conferencing, and more traditional communication methods potentially create a data set that is exponentially larger and disparate using traditional eDiscovery methodologies. [2]
Another related potential concern that for employers and employees is the hours that non-exempt employees work from home. In the event that standard work hours are not being enforced for at-home-work, the potential for wage and hour claims arise. It is important that employers know the hours non-exempt employees are expected to be working and to ensure that those hours are being enforced.
The combination of these two potential issues (disparate communication tools and tracking work hours) can present unique issues in stored data sets, as gaps in the stories may be unintentionally created. In order to fill this gap, the use of artificial intelligence tools could be a viable option. The use of the right AI in the right ways can normalize varied communications and provide timelines and patterns of those communications giving the whole picture of the communications, the communicators and the timelines of those communications. Further, the proper use of the right tools allows for the identification of patterns and anomalies in communications and timelines thereof.
The reopening of workplaces is not without challenges; however, with proper planning, open and clear communication and utilization of the right tools, it can be done safely and efficiently. Space, particularly shared spaces, may need to be configured to allow for proper distancing. Determinations about testing or other guidelines need to be made, communicated and enforced. Flexibility with employee schedules and concerns need to be addressed directly and clearly. Finally, new or expanding disparate sources of ESI need to be considered, and determinations on how to handle these data, including the use of AI, should be discussed and reviewed.
[1] Is subject to a federal, state, or local quarantine or isolation order related to COVID-19; Has been advised by a health care provider to self-quarantine because of COVID-19; Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; Is caring for an individual subject or advised to quarantine or isolation; Is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or Is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
[2] For more on the implications of Zoom, see the article by Acorn’s Amanda Cook: https://blog.aceds.org/ediscovery-considerations-with-business-use-of-zoom/
