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Employers Beware: COVID-19–Related Employment Lawsuits Are Heating Up

For the last several months, employers have been forced to learn how COVID-19 spreads, how to maintain or resume safe work environments, and how to navigate a complex web of new and existing laws and regulations implicated by the pandemic. Employers have also had to contend with a growing wave of COVID-19–related employment litigation.

A review of court filings in the United States from late March 2020 through early May 2020 reveals numerous employment lawsuits based on COVID-19–related claims that fall into the broad categories set forth in the following chart.

Types of Claims Examples Percentage of Claims
Whistleblowing/Retaliation/Wrongful Discharge Allegations of retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace 40%
Unsafe Working Conditions

Allegations that unsafe workplaces have caused sickness and/or death due to COVID-19

 

Allegations that employers have failed to take appropriate measures to adequately clean and sanitize workplaces

Allegations that employers have failed to provide necessary personal protective equipment, present adequate handwashing areas and sanitizing dispensers, or enforce social distancing protocols

23%
Disability Discrimination

Allegations related to forced leaves of absence

 

Allegations related to alleged failures to accommodate, including denials of requests to work from home

Allegations related to taking leave due to COVID-19 concerns

15%
Family and Medical Leave Act (FMLA)/Families First Coronavirus Response Act (FFCRA)

Allegations of failures to provide leave related to COVID-19

 

Allegations of retaliation for utilizing leave related to COVID-19

12%
Wage and Hour

Allegations of failure to pay for hours worked prior to business closures due to COVID-19 concerns

 

(It is anticipated that wage and hour lawsuits will ensue related to remote work by nonexempt employees and time spent completing health screenings, temperature checks, and/or other tests mandated by employers as they reopen.)

6%

Worker Adjustment and Retraining Notification Act (WARN)

 

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Other Assorted Claims

Allegations of layoffs without required WARN notices

 

Allegations of failures to provide COBRA notices and/or providing defective COBRA notices

4%

 

Given that the foregoing summary relates only to filings during a timeframe in which most states had shelter-in-place or stay-at-home orders, and many employers were either not operating or only partially operating, it is likely that these types of lawsuits will increase dramatically in the coming months. Not only is actual litigation on the rise, but recent data indicates that, as of May 11, 2020, there were more than 1,100 COVID-19 whistleblower complaints filed with the Occupational Safety and Health Administration (OSHA).

In addition, many states have enacted or are considering amendments to their workers’ compensations laws that would create a presumption that employees who contracted COVID-19 did so at work, thus exposing employers to a rash of new claims for workers’ compensation benefits.

As such, employers may want to consider the following to mitigate their exposure to COVID-19–related employment claims:

  • Ensuring relevant policies are up to date, including, but not necessarily limited to, policies related to non-harassment, anti-discrimination, anti-retaliation, the FMLA, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act under the FFCRA (if fewer than 500 employees), interactive process/reasonable accommodation issues, and remote work
  • Educating managers, supervisors, and human resources professionals on the relevant policies and steps to take if an employee requests to utilize the policies and/or expresses concerns of noncompliance
  • Preparing a COVID-19 workplace safety plan, communicating the plan to all employees, ensuring compliance with the plan, investigating and addressing any reported concerns, and documenting the investigation process and outcome
  • If conducting health screenings, temperature checks, and/or other testing such as viral testing, antibody testing, or oxygen testing, ensuring compliance with social distancing requirements, confidentiality with regard to any records created, and the mandates of applicable privacy laws (note that restrictions on permissible testing exist in some jurisdictions)
  • Documenting steps taken after an employee reports a positive and/or presumptive COVID-19 diagnosis and complying with all state guidelines and Centers for Disease Control and Prevention recommendations on quarantine timeframes and return-to-work parameters;
  • If adjusting compensation, providing notice of changes as required by applicable state laws
  • If reducing the workforce, providing appropriate notices and ensuring selection criteria is nondiscriminatory
  • Staying abreast of new legislative enactments
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 135

TRENDING LEGAL ANALYSIS


About this Author

Mark Diana, Ogletree Deakins Law Firm, Morristown, Labor and Employment Litigation Law Attorney
Shareholder

Mark has a diverse litigation and counseling practice representing both private and public sector employers.  For more than 25 years he has been defending employers in discrimination, harassment, wrongful termination, retaliation, breach of contract, wage and hour, and other employment-related cases before state and federal courts, administrative agencies and arbitration tribunals.  Mark also provides counseling and compliance advice to employers with respect to  the full spectrum of employment laws (including the ADA, Title VII, FMLA, FLSA, FCRA, WARN, NJLAD, CEPA,...

973-656-1600
Natalie Stevens Ogletree Deakins Attorney
Shareholder

Natalie Stevens represents business entities, educational institutions, and management in a myriad of employment-related matters, including matters involving allegations of assault; breach of contract; breach of fiduciary duty; breach of duty of good faith and fair dealing; breach of duty of loyalty; civil conspiracy; constructive discharge; conversion; defamation; denial of benefits; discrimination; ethnic intimidation; FMLA interference and retaliation; fraud; harassment; hostile work environment; intentional and negligent infliction of emotional distress; intentional, fraudulent, and negligent misrepresentations; invasion of privacy; negligent hiring, training, retention, and supervision; misappropriation of trade secrets; promissory estoppel; retaliation; theft; tortious interference with business and contractual relationships; unfair competition; unjust enrichment; wage and hour violations; whistleblower activity; and wrongful discharge.

In addition, Ms. Stevens provides as-needed assistance to management regarding a variety of employment-related matters, including drafting and updating employee handbooks and other employment policies and procedures; evaluating and responding to employee leave of absence requests; evaluating and responding to employee accommodation requests; investigating and resolving employee complaints; issuing disciplinary actions; handling employee terminations; preparing separation agreements; responding to claims for unemployment compensation benefits and appealing improper determinations; and enforcing restrictive covenants in employment contracts.

216-274-6904