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
Question 1. What are the types of claims employers may face related to COVID-19?
- 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
Disability Discrimination - 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
Data Privacy/Technology - 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
Other Claims - 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
Download >> COVID-19 Employment Legislation And Litigation FAQs
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
