For the last several months, employers have been required 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 and agency actions. Below are answers to a number of questions that employers may have regarding liability and litigation as businesses are reopening.
Analysis of COVID-19–Related Employment Litigation
Answer 1. Based on the latest court filings, employers can expect the following types of COVID-19–related claims:
Types of Claims Examples Whistleblower / Retaliation/Wrongful Discharge
- Alleged retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace
- Alleged retaliation for reporting misappropriation/misuse of funds received under the Coronavirus Aid, Relief, and Economic Security (CARES) Act
- Alleged violations of other state and federal retaliation statutes based on alleged protected activity
- Alleged retaliation for utilizing leave related to COVID-19
- Alleged workers’ compensation retaliation claims
Unsafe Working Conditions
- Alleged unsafe workplaces causing sickness and/or death due to COVID-19
- Alleged failures by employers to take appropriate measures to adequately clean and sanitize workplaces
- “Public nuisance”-type claims against facilities with outbreaks
- Alleged failures by employers to provide necessary personal protective equipment (PPE), make adequate handwashing areas and sanitizing dispensers available, or enforce social distancing protocols
- Alleged failures to comply with state and local orders concerning the safe operation of “essential” businesses and the closure and reopening of “nonessential” businesses
- Alleged failures to follow the U.S. Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) guidelines for reopening/essential work locations
- Alleged forced leaves of absence
- Alleged failures to accommodate, including denials of requests to work from home
- Allegations related to taking leave due to COVID-19 concerns in the workplace or concerns regarding employees’ preexisting health conditions or risk factors
- Allegations of perceived disability discrimination by screening out older employees while implementing return-to-work plans
Title VII – Discrimination Title III – Disability Access Family and Medical Leave Act (FMLA) / Families First Coronavirus Response Act (FFCRA)
- Failure to provide COVID-19-related leave under the Family and Medical Leave Act (FMLA) or Families First Coronavirus Response Act (FFCRA)
- Failure to provide paid leave under the FFCRA
- Retaliation for utilizing leave related to COVID-19
- Interference with ability to take leave related to COVID-19
Wage and Hour
- Allegations of failures to pay for hours worked prior to business closures due to COVID-19 concerns
- Claims of unpaid hazard pay, overtime, and sick pay
- Unpaid compensation claims arising out of remote work by nonexempt employees
- “Donning/doffing-like” time spent completing health screenings, temperature checks, and/or other tests mandated by employers as they reopen
- Unpaid sick leave claims under state sick leave statutes and the FFCRA
- Claims related to vacation, paid time off and paid sick leave
Reductions in Force (RIF) / Worker Adjustment and Retraining Notification Act (WARN)
- Failures to provide required WARN notifications in connection with mass layoffs and facility closings
- Disparate impact claims related to reductions in force
- “Right to recall” claims based on new ordinances in various locations
Workplace Safety and Health / Occupational Safety and Health Act of 1970 (OSH Act)
- Citations for violations of health and safety regulations and state health and safety orders related to COVID-19
- OSH Act 11(c) retaliation claims
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
- Alleged failures to provide COBRA notices and/or providing defective COBRA notices
Employee Retirement Income Security Act of 1974 (ERISA) Traditional Labor Relations / National Labor Relations Act (NLRA)
- Unfair labor practice charges by employees and/or unions arising out working conditions, reductions in force and reassignments
- Unfair labor practice charges and grievances by unions for claimed unilateral changes, breaches in collective bargaining agreement, inconsistent application of policies
- Protected concerted activity claims related to allegedly unsafe working conditions, hazard pay, and/or PPE
- Individual refusals to work and strikes
- Cybersecurity and data breaches due to increased work at home arrangements
- Fraudulent unemployment claims due to data breaches
- Claims related to symptom tracking, contact tracing, proximity beaconing, and the use of other forms of advanced COVID-19-related technology such as thermal imaging to check people’s temperatures for possible fevers
- Biometric privacy concerns relating to increased employer use of technology
- Workers’ compensation retaliation claims
- “Presumptive” claims of work-relatedness of COVID-19 claims under workers’ compensation
- Premises liability claims for COVID-19–related illnesses, injuries, and death contracted at a business premises by a member of the public, vendor, or contractor
- Tuition, dormitory, and meal reimbursement claims against prep schools, colleges and universities
- Construction claims involving delays, inefficiencies, accelerations, unexpected cost increases (i.e., testing, PPE, etc.), and material shortages
A2. A review of court filings in the United States from late March 2020 through June 4, 2020 shows numerous employment lawsuits based on COVID-19–related claims that fall into the broad categories set forth in the following graph. Employment related claims are increasing at a rapid pace each week.
Thus far, the most common claims relate to safety in the workplace and retaliation. Many of the related claims overlap and allege complaints about reports of unsafe workplaces and adverse action resulting therefrom.
A3. Yes. Hot spots of litigation activity related to employment-based COVID-19 claims are popping up in various parts of the country. At this time, the greatest number of claims are generally being filed in California, in states with larger rates of infection, and in states that have reopened quickly.
Given that the foregoing summary relates only to filings during a time when 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 weeks.
Analysis of COVID-19–Related Agency Filings Nationwide
Not only is COVID-19 litigation on the rise, but recent data indicates that agency actions are also increasing, in some cases exponentially.
Occupational Safety and Health Administration (OSHA)
A1. Between February 1, 2020 and June 17, 2020, OSHA received 6,113 COVID-19–related complaints and referrals and state OSHA plans received 13,629 for a total of 19,742. Of these complaints and referrals, 12,761 have been closed; 6,981 remain open.
- A3. Yes. There has been a spike in “fatality/catastrophe” inspections at healthcare facilities in recent months. For instance, in the first 3 weeks of April 2019, OSHA conducted 5 inspections in healthcare facility inspections in the “Fatality/Catastrophe” category, but in 2020 during the same period the agency conducted 36 inspections in the same category—a 620 percent increase over the comparable period. Those inspections include hospitals and other medical facilities. The inspection information does not include any information about COVID-19; however, the massive increase in the category of inspections appears to be driven by the present pandemic and workers who have fallen ill or succumbed after contracting the virus.
- A4. The first of what will likely be more COVID-19–related OSHA citations was issued on May 15, 2020, by Oregon’s state OSHA plan, where a beauty shop very publicly had refused to comply with the governor’s executive order requiring closure. The citation was classified as willful and was accompanied by a $14,000 proposed penalty. Oregon OSHA issued the citation under ORS 654.022 (“Duty to comply with safety and health orders, decisions and rules”), which requires compliance with health and safety orders relating to or affecting safety and health in employment or places of employment.
A5. Yes. OSHA has issued multiple versions of enforcement guidance since the beginning of the pandemic, with the most recent revisions issued in May 2020, to ensure employers are taking action to protect their employees.
OSHA intends to increase in-person inspections of workplaces of all types. The updated guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas where there has been less community spread. The risk of transmission is lower in specific categories of workplaces and in particular, communities, and the personal protective equipment (PPE) that OSHA compliance officers may need for inspections is now more widely available. OSHA will continue to prioritize COVID-19 inspections (though it is not clear what, exactly, that means), and will utilize all its enforcement tools.
OSHA has revised its previous enforcement guidance for the recording of cases of coronavirus. Under OSHA’s recordkeeping requirements in 29 C.F.R. Section 1904, coronavirus is a recordable illness, and an employer is responsible for recording a coronavirus case, if the case:
- is confirmed as a coronavirus illness;
- is work-related as defined by 29 C.F.R. Section 1904.5; and
- involves one or more of the general recording criteria in 29 C.F.R. Section 1904.7, such as medical treatment beyond first aid or days away from work.
Under the new policy, OSHA will enforce the recordkeeping requirements of 29 C.F.R. Section 1904 in cases of employee coronavirus illnesses that are work-related. OSHA’s guidance emphasizes that an employer must make reasonable efforts, based on the evidence reasonably available to it, to ascertain whether a particular case of coronavirus is work related; if the employer evidences good faith in doing so, OSHA will exercise enforcement leniency.
- A6. OSHA does not create a private right of action that would allow employees to sue a company for injuries or illness (COVID-19) caused by a violation of the Occupational Safety and Health Act of 1970 (OSH Act) or OSHA standards. On the other hand, OSHA regulations do not affect employee rights under state workers’ compensation laws to pursue lawsuits based on alleged violations of rights created by state statutes or common law. Evidence of OSHA violations, however, may be admissible as evidence in such suits depending on the jurisdiction. In tort lawsuits, evidence of an OSHA violation is normally allowed to show “some evidence” of negligence, while other courts have held that an OSHA violation constitutes “per se” negligence.
A7. There are two types of employee complaints under OSHA:
- Section 11(c) retaliation complaints under the OSH Act, which the U.S. Department of Labor can enforce through a civil enforcement action in federal district court; and
- A safety or health complaint by an employee where OSHA can dispatch an inspector to investigate and potentially issue a citation against the employer for any violations.
- A8. In the last few months, almost every state issued closure orders designating certain businesses as “essential” and allowing them to continue to operate during the COVID-19 pandemic. Some states issued orders expressly or implicitly regulating the safety and health of workers at those essential businesses. Some or all of the provisions in these orders may be preempted by the OSH Act.
A9. The General Duty Clause is found in Section 5(a)(1) of the OSH Act, 29 U.S.C. Section 654(a)(1), and it requires each employer to (1) “furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and (2) “comply with occupational safety and health standards promulgated under” the OSH Act. State OSHA plans have similar requirements.
While no COVID-19 citations have been issued based on the General Duty Clause, there may be some risk to employers for such a citation for a failure to implement a company’s safety procedures. In May 2020, just prior to the COVID-19 federal guidance and state closure orders, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision just prior to the COVID-19 federal guidance and state closure orders that should be of concern to every employer and safety professional. The case, BHC Northwest Psychiatric Hospital, LLC v. Secretary of Labor, 951 F.3d 558 (D.C. Cir. 2020), involved an employer that had ambitious but unimplemented requirements in its written safety procedures—the lack of implementation in large part caused the employer to be found guilty of a violation of the General Duty Clause.
A10. Not at this time. On May 18, 2020, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed an emergency petition with the U.S. Court of Appeals for the District of Columbia Circuit, seeking an order requiring OSHA to adopt an emergency temporary standard (ETS) within 30 days to address the workplace hazards posed by the COVID-19 pandemic. According to the AFL-CIO, OSHA has statutory authority to issue an ETS when employees are exposed to “grave danger” and additional action is necessary to protect them from this danger. OSHA took the position that it did not need to issue an emergency temporary infectious disease standard because its existing standards and the OSH Act’s General Duty Clause had equipped it adequately already.
The court issued a one-page order on June 11, 2020 denying the administrative petition for an ETS. The court held that “[t]he OSHA’s decision not to issue an ETS is entitled to considerable deference. In light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, the OSHA reasonably determined that an ETS is not necessary at this time.” See In re: American Federation of Labor and Congress of Industrial Organizations, No. 20-1158 (June 11, 2020).
Equal Employment Opportunity Commission (EEOC)
A1. Filing deadlines with the EEOC have not been affected by COVID-19. Charges must still be filed with the EEOC within the applicable timeframe (300 days or 180 days depending on circumstances).
The number of agency charges related to COVID-19 filed with the EEOC since February 2020 has not been released.
- A2. In an effort to delay litigation deadlines, the EEOC has unofficially stopped issuing right-to-sue letters amid the COVID-19 pandemic, unless specifically requested by an employee. The EEOC’s issuance of a right-to-sue letter starts a 90-day filing deadline for the employee to bring the lawsuit. The EEOC’s new practice will keep this 90-day clock from starting.
- A3. To date, the EEOC has not filed any COVID-19–related lawsuits on its own behalf. Litigation filed on behalf of individual plaintiffs is reflected in the nationwide litigation tracker above. (See “Analysis of COVID-19–Related Employment Litigation Filed Nationwide,” Q&A 3.)
The U.S. Chamber of Commerce has listed as a top legislative goal a broad safe harbor from COVID-19 related lawsuits for businesses tied to guidelines set out by the CDC and state health authorities. Opponents take the position that such safe harbors are unnecessary and would be overly broad. While the federal adoption of a liability shield is debated in Washington, D.C., states have begun to take action to help businesses mitigate the potential exposure.
Litigation Shield Legislation
A1. Yes. Ogletree Deakins has developed a tracking tool related to COVID-19 “litigation shield” legislation around the country. The tool can be accessed via the Ogletree Deakins Coronavirus Litigation Resource page.
The litigation shield tracking tool details newly enacted laws and pending legislation (as well as executive orders). The tracking tool also provides links to these developments and other useful materials. To date, the states highlighted in the map below have enacted liability shield litigation or have legislation pending. (Please note that legislation is considered pending even if it has passed both houses and is awaiting gubernatorial signature). States with current executive orders are also noted.
- A2. Each state has passed different legislation. Many states have passed laws designed to protect healthcare providers. Those laws are not addressed in the liability shield tracking tool because they are heavily associated with medical malpractice claims. Most of the “non-healthcare oriented” liability shield laws are not industry specific. Instead, they focus on broad categories of activities, such as maintaining premises, offering services, selling products, and employing individuals, and are for the most part drafted to be laws of general application.
- A3. Again, the details of the legislation vary from state to state. Most legislation either precludes liability unless a form of heightened culpability (such as gross negligence) is proven or the legislation conditions protection on adherence to specified guidelines.
- A4. While varied from state to state, the common theme running through most current legislation is that good actors should be protected. Employers may want to follow and keep current on CDC, OSHA, and other state guidelines for safe operation. Whether there is a need to affirmatively demonstrate compliance, or to defend against an allegation of heightened negligence, following official recommended practices will likely be beneficial. Employers may want to consider keeping good records of those efforts.
- A5. The same principles hold in the case of operations located in a state that has not yet passed a liability shield law, or in which none is yet pending. In all likelihood, future legislation will follow the same general pattern as that which already exists. Additionally, legislation may be designed to be retroactive, so precautions taken now may be pertinent to invoking defenses under future legislation.
Workers’ Compensation Legislation
A1. Yes. Ogletree Deakins has developed a tracking tool related to COVID-19 workers’ compensation legislation around the country. The tool can be accessed on the Ogletree Deakins Coronavirus Litigation Resource page.
The workers’ compensation tracking tool details proposed legislation, enacted legislation, and emergency rules. The tracking tool also provides links to these developments, state workers’ compensation websites, and other useful materials. To date, the following states have passed legislative reforms or emergency rules related to workers’ compensation and COVID-19. In addition, the chart below shows the states in which legislation is pending.
- A2. Yes. Some states have issued emergency rules. Some state agencies have also issued substantive policy statements or guidance advising that claims handlers may not categorically deny COVID-19 claims and how to evaluate COVID-19 claims. The workers’ compensation tracker identifies these states as well.
- A3. Each state has passed different legislation. Some states have limited the workers’ compensation expansion to health care and emergency response workers, but other states do not have this limitation and expand presumptive coverage to more classes of workers, primarily those workers deemed to work for essential businesses defined by a state’s executive order(s).
- A4. The impact of workers’ compensation reform on COVID-19 litigation depends on the type of reform passed. Most states that have passed reforms have included presumptions that an employee contracted COVID-19 at work. The presumption shifts the burden from the employee to prove the virus was contracted at work to the employer to prove that the virus was not contracted at work.
A5. Determining if an employee is eligible for workers’ compensation benefits if he or she contracts COVID-19 is not a clear-cut analysis, so it would be prudent to evaluate claims based on the facts and circumstances under the applicable state law. If the employee is a health care worker, first responder, or essential employee required to work during the pandemic, the answer is more likely to be “yes” (subject to variations in state laws regarding coverage and an employee’s burden of proof). For other categories of employees, a compensable workers’ compensation claim is possible (but unlikely), though the analysis is very fact-specific. Of course, in states that have implemented presumptions, coverage is more likely. Further, there are numerous novel pandemic factual scenarios (e.g., teleworking arrangements) for which workers’ compensation compensability outcomes currently are unknown.
As a general matter, in order to qualify for workers’ compensation benefits, most states require an employee to prove that an injury occurred at work and was proximately caused by his or her employment. Importantly, it is unlikely that contracting COVID-19 would be considered an injury; instead, it is likely that the issue will be analyzed under state law to determine if the injury is an occupational disease. To be an occupational disease (again, subject to state law variations), an employee generally must show two things:
- The illness or disease is occupational, meaning that it arose out of and was contracted in the course and scope of employment
- The illness or disease arose out of or was caused by conditions peculiar to the work which created a risk of contracting the disease in a greater degree and in a different manner than in the public generally
The general test for determining whether an injury “arises out of and in the course of employment” is whether the employee was exposed to harm (in this case, the virus) while involved in some activity for the benefit of the employer.
Compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key consideration generally will be whether the employee contracted the virus while working and whether the exposure to the disease was “peculiar” to the employment. Even if the employer takes all of the right steps to protect employees from exposure, a compensable claim may be determined where the employee can show that he/she contracted the virus after an exposure, the exposure was peculiar to the work, and there are no plausible alternative means of exposure demonstrated.
- A6. Employers can prepare for workers’ compensation claims by following and keeping up to date on CDC, OSHA, and other state guidelines for a safe workplace. In addition, employers can prepare by keeping good records and illustrating the steps taken to prevent infection from getting into and spreading in the workplace.
- A7. Each state provides exclusions from workers’ compensation claims, the most prominent being if an employer acts with intent to harm. It is anticipated that claims will be filed in state courts around the country and an affirmative defense of workers’ compensation exclusivity will need to be raised. How each state court system will deal with this type of challenge to workers’ compensation exclusivity is still unclear. Depending on the state system, this could result in costly defenses for employers as they seek to show an absence of intent to harm in state court settings before their cases are moved to workers’ compensation arenas where it can be shown the virus was or was not contracted at work. Generally, courts give strong deference to the workers’ compensation bar. But it remains to be seen how courts will analyze novel claims filed for COVID-19 contraction or exposure.
- A8. Employers in states that have not implemented any changes to their workers’ compensation laws may find it beneficial to continue to analyze whether a COVID-19–related exposure is compensable under their states’ existing statutory definitions and administrative guidance.
A1. An employer may want to consider the following actions to mitigate the 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 regarding 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 CDC 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 laws and other legislative developments
Ogletree Deakins has launched the COVID-19 Litigation Practice Group to track and respond to COVID-19 related litigation. 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.
Important information for employers is also available via the firm’s webinar programs. The COVID-19 Litigation Practice Group will present a COVID-19 webinar series throughout 2020 to discuss trends related to COVID-19 employment litigation.