COVID-19 Litigation Preparedness

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

• 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

• 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

• 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

• 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

• 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

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

Race, Ancestry, National Origin Discrimination

• 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

• 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

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

Personal Injury (Torts, Negligence, Third Parties)

• 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).