October 19, 2020

Volume X, Number 293

October 16, 2020

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Risky Business: COVID-19 Employment Litigation Claims Will Be on the Rise

As New York and New Jersey take steps to relax shelter-in-place executive orders, allowing more businesses to reopen and recall employees to work, companies face challenges to comply with the myriad of constantly evolving executive orders as well as guidance documents issued by the Centers for Disease Control (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) to resume work and to minimize risks.

Virtually every aspect of the pandemic has increased potential employment litigation exposure from a variety of sources, including existing statutes as well as new federal, state and local laws. These risks are exacerbated by the fact that so many employees in the Tri-State area are, and will remain, unemployed, coupled by what will inevitably be an active plaintiffs’ bar ready to file claims. Claims may be triggered if employees resist calls to return to the workplace based on fears of COVID-19 exposure and suffer adverse consequences when they do not return, are exposed to the virus while they are at work, or are denied the right to continue working remotely or other requested accommodations.

The areas employers are likely to see an uptick in litigation include:

• Employment discrimination claims arising under federal, state and local human rights laws, based on discriminatory rehire and recall decisions, a failure to reasonably accommodate employees with bona fide disabilities related to COVID-19, and co-worker harassment based on pandemic-related health concerns.

• Safety violation claims arising under the Occupational Safety and Health Act from alleged employer failures to take appropriate measures to reduce COVID-19 exposure and spread within the workplace.

• Negligence claims based on personal injuries allegedly suffered by employees due to workplace hazards, which may or may not be pre-empted by Worker’s Compensation statutes.

• Claims based on inadequate or non-existent written notices when employees were laid off or furloughed, arising under the federal WARN Act as well as under “mini-WARN Act” statutes in those states that have them (such as New York and New Jersey).

• Wage and hour claims arising under the Fair Labor Standards Act and applicable state laws related to salary and hours reductions that were instituted when companies sought to reduce operating costs due to declining revenue and/or based on a failure to properly record hours worked while working remotely.

• Leave of absence claims, where employee requests for additional leave are denied, or where employees have not received COVID-related paid leave benefits while remaining actively employed - under the federal Families First Coronavirus Relief Act, applicable state governor executive orders, and local ordinances.

• Whistleblower retaliation claims arising under existing state laws if employees who raise internal health or safety concerns suffer adverse action.

• Unfair labor practice charges arising under the National Labor Relations Act if employees engage in a variety of “protected concerted activities” related to COVID-19 health and safety concerns.

In order to minimize the risk of claims, it is advisable for employers to take proactive steps, such as by:

• Developing a return-to-work plan that incorporates executive orders, CDC, OSHA and local health authority workplace safety guidance on personal protective equipment (“PPE”), workspace hygiene, social distancing measures and, where applicable, wearing masks.

• Implementing a reasonable accommodation process to evaluate requests for temporary job restructuring, position transfers, remote work, leave or modified work schedules.

• Handling recall, rehire and job offers in a manner that limits the risk of discrimination claims.

• Preserving the confidentiality of all medically-related information provided by employees in response to the pandemic.

• Investigating and responding to internal employee complaints and expressions of concern regarding any workplace safety or health issue raised by employees reluctant to return to work, handle certain tasks, or attend certain meetings.

• Training managers and supervisors on minimizing workplace injury claims based on COVID-19 conditions.

• Reviewing reductions-in-force for compliance, including analyzing WARN Act issues, drafting WARN Act notices or evaluating the sufficiency of such notices.

• Determining whether any adjustments made to employee salaries for work performed during the past months compromised their exempt from overtime status, how this can be repaired, and what, if any, notices must be sent to affected employees when doing so.

• Evaluating requests for leaves of absence and determining what, if any, leave entitlements exist under federal, state and/or local laws, which must be reviewed on a case-by-case basis and properly documented.

• Analyzing whether employees engaged in protected concerted activities related to COVID-19-related safety and health concerns before taking adverse action.

© Copyright 2020 Sills Cummis & Gross P.C.National Law Review, Volume X, Number 140


About this Author

Grace Byrd Employment Attorney Sills Cummis Law Firm
Of Counsel

Grace A. Byrd is Of Counsel to the Sills Cummis & Gross Employment and Labor Practice Group.

Ms. Byrd has worked with business owners, executives and other professionals to develop and execute well–thought–out and practical legal strategies to effectively achieve their litigation and business goals.  She counsels with an eye towards helping clients meet their business objectives while remaining legally compliant.

She has represented corporate clients from a range of industries, including financial services, health...

Clifford D. Dawkins, Jr. Associate Sils Cummins Newark Employment and Labor Practice Group

Clifford D. Dawkins, Jr. is an Associate in the Sills Cummis & Gross Employment and Labor Practice Group. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

While attending law school, Mr. Dawkins was an editor for the Rutgers Race & the Law Review, served as the president of the Student Bar Association, and participated in International Commercial Moot Court competitions in Paris, France and Hong Kong, China. He worked as an Associate Mediator with the Equal Employment Opportunity Commission. Mr. Dawkins also served as an intern for the Honorable John J. Hoffman, Attorney General for the State of New Jersey. He served as an intern in the U.S. House of Representatives and U.S. Senate. Mr. Dawkins also was awarded the United States President’s Gold Volunteer Service Award for his work with the Urban League of Morris County.

Mr. Dawkins received his J.D. from Rutgers Law School-Newark, where he was the recipient of the Garden State Bar Association Scholarship Award, the Wanda Green Endowed Scholarship Award, the Education Pioneers Fellowship, the ABLS Dream Leader Award and was a member of the Phi Delta Phi International Legal Honors Society. He received his M.P.P. from Rutgers, The State University of New Jersey where he was an Eagleton Institute of Politics Fellow, awarded the Edward J. Bloustein Outstanding Student Service Award and served as the 20th Anniversary Class Speaker. He received his B.S. in Business Administration from Cornell University where he was a Cornell Tradition Fellow.  

Prior to joining Sills Cummis & Gross, Mr. Dawkins was an associate at a national employment and labor law firm and clerked for the Honorable Jose L. Fuentes, Presiding Judge for the New Jersey Superior Court, Appellate Division.

(973) 643-7000
Jill Turner Lever Employment Lawyer Sills Cummis Gross Law Firm
Of Counsel

Jill Turner Lever practices in all aspects of employment law.  She advises clients on a wide range of employment law issues including day-to-day advice and counsel on compliance with federal, state and local employment laws.  Ms. Lever drafts employment agreements, separation agreements, employee handbooks and human resources policies.  She provides advice on handling complaints of sexual and other forms of workplace harassment.  

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558