Back to work

As the COVID-19 pandemic wears on and more employees go back to work, the risk of catching the disease for workers has spawned a growing wave of employment litigation.

Lawsuits are flying as employers struggle to keep their workplaces safe and negotiate an often-confusing mishmash of new and existing laws and regulations. Regulators have been issuing new rules for dealing with COVID-19 among workers, and Congress has passed laws addressing workers and the pandemic.

Law firm Ogletree Deakins reviewed court filings for March through May and found that COVID-19-related lawsuits fell into a number of categories. The list is instructive for any employer who has continued operating or has or is about to reopen operations after local stay-at-home orders are lifted.

Knowing what kind of actions are most prevalent can also help you devise strategies to avoid being sued in the first place.

Here are the types of claims, and the percentage of all COVID-19-related claims against employers that they account for:

Whistleblowing/retaliation/wrongful discharge — 40% of COVID-related claims against employers. These lawsuits will typically include allegations of retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace.

Unsafe working conditions — 23% of COVID-19-related claims against employers. These lawsuits will typically include allegations:

  • That an unsafe workplace has caused sickness and/or death due to COVID-19.
  • That an employer has failed to take appropriate measures to adequately clean and sanitize workplaces.
  • That an employer has failed to provide necessary personal protective equipment, present adequate handwashing areas and sanitizing dispensers, or enforce social distancing protocols.

Disability discrimination — 15% of COVID-19-related claims against employers. These lawsuits will typically include allegations:

  • Related to forced leaves of absence.
  • Related to alleged failures to accommodate, including denials of requests to work from home.
  • Related to taking leave due to COVID-19 concerns.

Family and Medical Leave Act/ Families First Coronavirus Response Act — 12% of COVID-19-related claims against employers. These lawsuits will typically include allegations:

  • Of failure to provide leave related to COVID-19.
  • Of retaliation for utilizing leave related to COVID-19.

Wage and hour — 6% of COVID-19-related claims against employers. These lawsuits will typically include allegations of failure to pay for hours worked prior to business closures due to COVID-19 concerns.

The law firm noted that it anticipates this last type of cases to grow as more employees work remotely, and employees spend time off the clock completing health screenings, temperature checks and other tests employers may administer to clear them for work.

Ogletree predicts that all employee-initiated lawsuits that relate to COVID-19 will increase dramatically as states and local municipalities ease stay-at-home orders and more people go back to work, just as it seems that there is a new wave of cases in some areas that may have opened too early.

In addition to these lawsuits, as of June 1, Fed-OSHA had received more than 1,500 COVID-19 whistleblower complaints.

The takeaway

The law firm recommends that to reduce the risk to coronavirus-related employment lawsuits employers should:

  • Keep policies up to date, particularly those related to harassment, discrimination, retaliation and the FMLA.
  • Train managers, supervisors and HR staff on how to respond appropriately if employees make requests or express concerns regarding COVID-19 safety practices.
  • Prepare a COVID-19 workplace safety plan and communicate and train your staff on the plan.
  • If you are conducting health screenings, temperature checks or virus-testing, make sure that you do so safely by complying with social distancing requirements and with privacy laws in mind (you may want to consider having employees sign releases so they can’t sue you for conducting the testing).
  • Document the steps your organization takes if an employee tests positive for COVID-19.
  • If you are changing employees’ pay, make sure you give them notice of those changes in advance.
  • If you are cutting staff, make sure you set uniform rules and criteria for who stays and who is let go or furloughed, in order to avoid claims of discrimination. Seniority, for example, is a good way to avoid discrimination allegations.
Nils Wright
Author: Nils Wright