Robin B. Kallor
Updated: June 29, 2020
Experts Corner
Lamont’s executive orders could spur employment-discrimination lawsuits
Photo | CT Mirror/CLOE POISSON
Gov. Ned Lamont (center) and Lt. Gov. Susan Bysiewicz (left, center) toured a New Britain warehouse in recent months to highlight a large shipment of personal protective equipment, or PPEs, that arrived over the weekend from China for health care workers on the front lines of the COVID-19 pandemic.
By Robin B. Kallor
It seems almost like an Orwellian nightmare: By following the law, one violates the law.
Unfortunately, this may be precisely the paradox that many Connecticut employers now face. Gov. Ned Lamont’s plan to “reopen” the economy may unintentionally have the perverse consequence of leaving employers that strictly comply with the reopening guidance vulnerable to employment-discrimination lawsuits.
On May 20, Connecticut began to reopen its economy, pursuant to Lamont’s executive order 7PP and its associated general and sector-specific guidance.
Employers, even in their understandable rush to resume business, must be cautious about implementing the governor’s guidance because some of its provisions may come into conflict with existing and superseding federal employment-discrimination laws.
This creates substantial risk for employers, inviting expensive lawsuits by doing nothing more innocuous than following the public health policies mandated by the state of Connecticut.
What exactly is the conflict?
The issue is that the governor’s guidance advises employers to treat certain employees differently on the bases of their age, disability or pregnancy, which may in turn violate federal employment-discrimination laws.
For example, the guidance instructs employees who are over age 65 and those who have underlying medical conditions to “stay home.” Yet, following the instruction rigidly (i.e. disallowing employees over 65 or who have underlying medical conditions from coming to work), without regard to federal anti-discrimination laws, could leave an employer vulnerable to expensive discrimination lawsuits brought by affected employees.
There are multiple major federal laws at play.
The Age Discrimination in Employment Act prohibits employers from discriminating against employees age 40 or older because of their age; the Americans with Disabilities Act prohibits employers from discriminating against employees because of their disability.
Under these laws, employers may not prevent employees from coming to work because of their age or disability, despite being at medically higher risk of contracting COVID-19.
Undoubtedly, the governor was acting in good faith to protect high-risk employees with his executive order and guidance, but Lamont does not have the power to repeal or suspend federal laws.
How can employers thread the needle of complying with this guidance?
Instead of preventing employees in these high-risk categories from coming to work altogether, employers should provide them with options for alternative working arrangements — but never require workers to accept them.
Consider whether accommodations could be made to allow these high-risk employees to work as safely as possible (i.e. allowing the employee to work remotely).
If that is not an option, offer these individuals the opportunity to take a voluntary furlough and collect unemployment. Employers may not require employees to take advantage of these offers, but they can and should offer and recommend it to high-risk employees.
If they wish to remain at the workplace, consider a change of schedule or work location if possible to minimize contact with others. High-risk employees should be informed that these are purely voluntary options; they are free to accept or reject them.
In sum, Lamont’s executive orders and guidance arise from good intentions and compelling public policy, but they create a risky legal minefield for employers to navigate.
Obviously, Lamont designed the re-opening guidance to curb the spread of COVID-19 and protect Connecticut’s most vulnerable citizens, but a governor’s executive order does not supersede federal discrimination law.
In fact, it is unclear whether an executive order could “void” Connecticut’s state employment discrimination laws, which are far more expansive and punitive for small employers.
Employers should offer but not force accommodations.
Robin B. Kallor is a partner at employment law firm Rose Kallor LLP.
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