COVID-19 Litigation Preparedness

Employment Law Alert | June.24.2020

We have been tracking COVID-19 employment related litigation activity across the country—for a list of common themes we are seeing and best practices to help reduce the risk for your company, read on!

Three months after many Shelter-In-Place orders took effect, we are seeing increased employment related litigation involving allegations related to the COVID-19 pandemic. We are providing you with a summary of the legal issues that are front and center in these cases brought so far, and practical advice to help reduce risk.

What COVID-19 employment related litigation has been initiated thus far? COVID-19 litigation runs the gamut and includes single- and multi-plaintiff cases, class actions and representative actions, requests for injunctions, and more. Cases filed to date have included claims premised on safety violations, discrimination, retaliation, wage and hour violations, focusing primarily on how employers have responded to the COVID-19 pandemic. Businesses that have operated during the lockdown as essential businesses throughout the pandemic have been especially vulnerable to claims.

State Attorneys General have also been active in enforcing business closures and state laws governing commercial activities. Some businesses have faced criminal repercussions for violating state limits on business operations during the pandemic. Governments in various states have also issued civil citations for violations of executive orders.

chart detailing employment law cases since March 2020 

Can you provide some examples? Here are just a few examples of COVID-19 litigation filed thus far:

  • An employee in Pennsylvania sued their employer based on denial of FMLA leave requested because they were in a higher risk category if they contracted COVID-19.
  • A multi-plaintiff lawsuit alleges that an Ohio employer’s layoffs related to COVID-19 were pretext for age-based discrimination.
  • Healthcare and other essential employees have brought claims alleging retaliation in connection with complaints about unsafe working conditions, including lack of face coverings and/or other safety and sanitation measures in the workplace.
  • Employers in multiple states, including Illinois and Texas, are facing wrongful death lawsuits from surviving family members.
  • An employee in California sued her employer for disability discrimination and retaliation, alleging she requested leave to care for her sick mother whose daily caregiver was unavailable due to COVID-19 and was subsequently included in a layoff.

What are the main areas of COVID-19 litigation risk, and what can my Company do to prepare? The table below contains a general summary of areas where we have seen or anticipated increased litigation activity relating to COVID-19, as well as practical steps your Company can take to lessen the risk.

COVID-19 Litigation Overview

Claims and issues may vary by state and location

Areas of COVID-19 Litigation

Litigation Risk1

Practical Steps to Lessen Risk

Violation of Stay at Home or Shelter in Place Orders

Orrick

  • Do not allow non-essential employees to come to work while Stay at Home and Shelter in Place Orders are in effect.
  • Ensure any essential employee letters are accurate and conform to federal law and state and local laws and guidelines.

Whistleblower / Retaliation

Orrick

  • Follow guidance from the CDC, OSHA, and state and local public health authorities on how to protect workers from COVID-19.
  • Establish a clear process for employees to report any safety concerns.
  • Update company policies and trainings to clearly communicate that retaliation against employees who file a complaint or who raise safety concerns is strictly prohibited.

Wage and Hour

Orrick

  • In states that require reimbursement of reasonable business expenses (such as California) consider whether to reimburse or provide a stipend to cover costs associated with mandatory remote working (e.g. internet service, office products, etc.)
  • Ensure non-exempt employees are properly tracking their hours and taking breaks while working remotely.
  • Upon return to work, consider whether non-exempt employees must be compensated for COVID-19 -related activities that occur before or after normal work hours (e.g. temperature checks, daily health attestations, waiting in socially distanced lines to enter buildings, laundering cloth face masks.)
  • Assess whether exempt employees continue to meet the salary basis test and duties test(s) for exempt status considering any changes that have occurred during the COVID-19 pandemic.

Layoffs / Reductions in Force / Furloughs

 

It depends on Company’s level of activity in this area…

  • If your Company has conducted or is considering implementing layoffs, reductions in force, or furloughs, ensure compliance with the WARN Act and mini-WARN Acts (where applicable).
  • Comply with OWBPA requirements and provide all required information.
  • Use a selection process based on objective business criteria. Consider performing a privileged disparate impact and/or pay equity analysis.

Paid Sick Leave / FMLA

Orrick

  • Determine whether your Company is covered by the Families First Coronavirus Response Act (FFCRA) and/or state or local emergency or supplemental paid sick leave laws.
  • Update HR policies and processes, and train appropriate personnel, to provide paid sick leave to employees in compliance with applicable laws.

Disability Discrimination / Failure to Accommodate

Orrick

  • Ensure any employer-required medical examinations are safe, accurate, and reliable, and conform to guidance from the EEOC, CDC, and relevant public health authorities.
  • If your Company has a testing policy, allow for flexible application and exceptions based on different employee needs, including the need for disability accommodations.
  • Handle refusals to return to work with care and initiate the interactive process when appropriate.
  • Do not automatically exclude higher risk individuals from the workplace. If you believe an individual poses a direct threat to their own safety, conduct an individualized assessment consistent with the ADA and EEOC guidance.
  • Although COVID-19 is not specifically considered a disability, be flexible in granting leave and other working arrangements requested by employees in connection with COVID-19, including remote working or other work-at-home accommodation requests from employees who are higher risk, those with childcare responsibilities, and those living with elderly or higher risk individuals.
  • Train employees and managers not to stereotype caregivers and higher risk employees. Carefully monitor management processes, such as performance review cycles, for signs of bias.

Age, Genetic Information, and Pregnancy Discrimination

Orrick

  • See above. Adopt a flexible approach when it comes to granting reasonable accommodations to higher risk individuals.

Race, Ancestry, National Origin Discrimination

Orrick

  • Enforce Company policies prohibiting xenophobic comments (e.g. “Chinese flu”), including taking disciplinary action when appropriate.
  • Carefully monitor management processes, such as performance review cycles, for signs of bias.

Health and Safety

Orrick

  • Follow guidance from the CDC, OSHA, and state and local public health authorities on protecting workers from COVID-19.
  • While most actions alleging injury are preempted by workers’ compensation, some plaintiffs are attempting to pursue public nuisance injunctions or to collect PAGA civil penalties under California law.

Medical Privacy

Orrick

  • Ensure collection and storage of employee medical information complies with ADA confidentiality and state data privacy laws.

Personal Injury (Torts, Negligence, Third Parties)

 

Orrick

  • Make efforts to meet duty of care towards all people who visit worksites by following guidance from the CDC, OSHA, and state and local public health authorities on preventing transmission of COVID-19.
  • Personal injury claims usually covered by workers’ compensation, even if “intentional” in most states (including California).

1This is not intended to predict the risk of litigation or claims for your Company specifically, but rather, as an indication of where we anticipate to see the largest amount of litigation activity relating to COVID-19.

 

Please reach out to any Orrick contact if you have questions or would like to discuss.