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

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.