Although the first several months of the pandemic did not see much in the way of COVID-19 employment litigation, we are now seeing a deluge of cases with no end in sight. Below is a summary of the trends:
1) Safety-related enforcement activity and lawsuits
After being criticized for “sitting on the sidelines” at the outset of the pandemic, OSHA has ramped up its investigation and enforcement activity. The agency has publicized numerous recent citations to employers, including to a meatpacking plant and a health care system, for failing to provide adequate safeguards against COVID-19. It has also informed employers that they are obligated to determine if COVID exposure suffered by employees is work-related, and it has recently cited employers for failing to timely report deaths or hospitalizations caused by COVID-19 exposure at the workplace.
In addition to activity by OSHA, numerous civil lawsuits have been filed against employers by employees or their families for gross negligence and wrongful death. And there have been some so-called “take home” lawsuits filed by family members of workers who allege that the worker was exposed at the workplace and then transmitted the virus to family members. This latter type of lawsuit could pose special risk to employers because, arguably, family members or others who allege to have been exposed could sue for ordinary negligence and would not be limited by the workers’ comp bar on such lawsuits.
Some large employers such as McDonald’s and Amazon have also been sued in “public nuisance” cases in which employees allege that the failure to mitigate against COVID-19 risks threatens employees and the public at large.
Lastly, employers are contending with whistleblower and retaliation cases filed by employees who allege that they were retaliated against after raising COVID-related safety concerns. Such cases are being filed with OSHA and under state law.
We expect to see safety-related cases increase as workers are increasingly required to return to work and the pandemic persists.
2) WARN Act litigation
As expected, WARN Act cases are being filed by employees who were laid off in large numbers due to COVID-related slowdowns. In almost all of the reported cases thus far, employers are asserting the “unforeseeable business circumstances” defense, which permits employers to give less than the required 60 days’ notice if the mass layoff or plant closing was due to unforeseeable business circumstances. In at least one case, the plaintiffs anticipated the defense, arguing that the employer could not establish the defense because it had not fully taken advantage of Paycheck Protection Program loans that may have forestalled the need for layoffs.
As these cases are in their early stages, it remains to be seen whether employees will have success with the unforeseeable business circumstances defense in the pending litigation.
3) FFCRA and FMLA litigation
Dozens of cases have been filed related to leave needed by employees to address COVID-19. Some of the cases involve allegations that employees were terminated because they requested time off because of a COVID-19 diagnosis or quarantine/isolation order, or simply refused leave under the Families First Coronavirus Response Act (FFCRA) or Family and Medical Leave Act (FMLA). Others are retaliation cases in which the employee alleges termination following the employee’s question or concern about leave.
We predict that these claims will continue to be filed as the pandemic stretches on.
4) Discrimination and failure-to-accommodate litigation
To date, several dozen cases have been filed alleging employers’ failure to accommodate certain medical conditions, including pregnancy, that would tend to put the employee at higher risk for complications due to COVID-19. Most of these cases have involved requests to work remotely. As the pandemic stretches on and large numbers of employees work remotely for extended periods of time, it will be harder for employers to argue that teleworking – at least for a relatively limited time period – is unreasonable or an undue hardship. We expect to see these types of allegations to continue into the future.
Another possible future litigation subject is mandatory COVID vaccines and the extent to which employers must accommodate objections to vaccines based on health conditions or religious observance.
5) Wage-and-hour litigation
There have been numerous wage-and-hour lawsuits filed related to COVID-19. The most common claims include:
• failing to include COVID-related bonuses in the regular rate of pay when calculating overtime for non-exempt employees;
• failing to pay non-exempt employees for time spent on COVID-related safety tasks; and
• failing to pay employees for “on call” time relating to COVID-19.
Not surprisingly, many of these claims are pled as collective actions involving classes of employees.
The Bottom Line for Employers
After an initial delay, employment-related COVID litigation has arrived. The cases highlight the areas of greatest risk in employers’ handling of COVID-19 and employers should keep tabs on these developments. Some resources with which to do so include federal agency news releases, which are located at:
https://www.osha.gov/enforcement/covid-19-data
https://www.dol.gov/newsroom/releases