Trends in COVID-Related Employment ActionsJuly 6, 2020 – Alerts
More than three months into furloughs, layoffs, work-from-home models and soldiering through a blizzard of coronavirus-related legislation, sufficient data is now available to alert employers to the most common types of COVID-related employee lawsuits, at least in this initial wave of litigation. Identifying the leading types of such lawsuits equips us to give valuable advice targeted to protecting any particular client from the most likely claims related to the pandemic.
This article is the product of in-depth research conducted by our firm’s Labor & Employment Department. The project consists, in part, of gathering data on virtually a real-time basis on hundreds of coronavirus-related employment lawsuits filed in federal and state courts throughout the U.S., analyzing the cases individually and categorizing them.
Since March, employees and former employees have filed COVID-related lawsuits against employers in the District of Columbia and at least 27 states in all regions of the country. Through June 30, California, New Jersey, Florida, New York and Texas ― listed in descending order ― had seen the most suits. Since April, these lawsuits have been filed at a steady pace that shows no signs of waning. The only region that has experienced noticeably fewer such lawsuits so far is the Midwest. If outbreaks of the virus become more common in rural areas, however, one may also expect the distribution of coronavirus-related litigation to evolve to some extent.
The project’s work discloses the most regularly filed coronavirus-related employment lawsuits filed to date to be the following:
1. Wrongful Terminations
By the numbers, wrongful termination actions involving COVID-19 are the clear leader. The actions consist of almost all varieties of wrongful termination actions. Often, the actions are being filed on behalf of former employees who lost their jobs through pandemic-related furloughs or reductions in force (RIFs). Broadly speaking, plaintiffs’ attorneys and their clients are viewing furloughs and RIFs with skepticism. Many plaintiffs’ attorneys are receptive to evidence that their client was deliberately included in a mass personnel action for an unlawful reason and that the employer used the pandemic and recession, and resulting furlough or RIF, as a pretext or “cover” to offload an employee they found undesirable due to advanced age, disability, whistleblowing or other unlawful reason.
Our team also reviewed complaints of discrimination requesting an immediate right-to-sue letter that were filed with the California Department of Fair Employment and Housing, most of which were prepared by counsel for the terminated employee. A notable number of the complaints alleged that employers used the COVID-19 pandemic as a pretext for terminating the complaining employee, while the complaining employee and counsel alleged in their complaint that the termination was, in fact, motivated by an unlawful reason, such as an employee’s pregnancy or to avoid accommodating a disabled employee by allowing the employee to work from home, etc.
- Develop and utilize a written scheme of lawful, objective and neutral criteria for selecting who to include in any furlough or RIF. Analyze in advance of the personnel actions whether the furlough or RIF will have a disproportionate impact on employees with any particular protected characteristic, e.g., age, ethnicity, gender, etc., and consider whether the criteria should be modified to minimize any disparate impact on those with a protected characteristic. Consider developing the criteria and analyzing the impact with counsel, within the protection of the attorney-client privilege.
- Even when considering terminating a small number of employees, exercise particular rigor in evaluating risk in the terminations. We are all operating in an unusual time, amid an ongoing recession of uncertain length when many are anxious or fearful. At least as a potentially informative exercise, assume each terminated employee will consult counsel, honestly imagine what the former employee can truthfully tell their attorney and attempt to evaluate how that attorney will view the termination.
2. Employee Fear Over Workplace Safety
The second most frequently filed type of coronavirus lawsuit employees have filed to date involves actions that allege employers failed to adequately protect employees from on-the-job coronavirus transmission. These allegations include employers failing to:
- Enforce physical distancing in the workplace
- Train management and line employees on safety protocols
- Effectively clean the workplace
- Safeguard employees from obviously sick managers and co-workers
- Allow for frequent hand-washing
- Provide masks or reimburse employees for the cost of their buying masks
- Adequately post safety protocols
- Otherwise follow the jurisdiction’s workplace safety protocols
The lawsuits allege, secondly, that when employees raised concerns, they were fired. Lawsuits filed so far allege employees were fired for expressing their concerns both internally to management and co-workers and, in other cases, externally, including by posting their fears on social media or airing them in TV or other media interviews.
A significant number of cases allege that management instructed employees not to discuss the subject of workplace safety or the possibility that anyone at work might be infected, with co-workers. Those cases also allege that, when the employees conversed in violation of their employers’ orders, they were fired.
Other plaintiffs allege that they told management why they felt they were at risk in the regular workplace, declined to work there until deficiencies were corrected, and were fired.
Single-plaintiff actions aren’t the only ones being filed in connection with workplace conditions. Putative class actions are pending around the country alleging that employers are leaving large numbers of employees at unacceptable risk of becoming coronavirus-infected while on the job by failing to implement and enforce necessary safety protocols. Such lawsuits seek, in part, injunctions requiring employers to adopt and enforce specific safety protocols or face being shut down.
Some of the most effective steps to avoid being the subject of a case of this type are the following:
- Identify for employees at least a few different people in positions of authority in the organization to whom they may take concerns regarding the coronavirus. Also provide a means for employees to report concerns anonymously. Do what is possible to demonstrate to the workforce that the employer wants to hear employee concerns and work through them. When employees express concerns, genuinely listen.
Employees who fear coming to work and believe their employer will not listen to them are more likely to view the employer as the enemy and become adverse to the employer. Employers should want to hear their employees’ concerns as early as possible so they have an opportunity to engage in a dialogue, correct practices if needed and resolve employee concerns privately within the organization.
Be prepared to extend a little extra compassion. Broadly speaking, Americans are experiencing an unparalleled level of stress attributable to pandemic fatigue, widespread job losses, the onset of a recession, political divisiveness, racial tensions and other factors. Any individual employee may have a sensitivity or limited ability to cope that is different from that of the manager or HR officer on the other side of the desk. Providing a little extra leeway at this time, in this social climate, may pay off in a big way in the long run for employers.
- Adopt the coronavirus workplace safety protocols ordered or recommended in the employer’s jurisdiction, post the rules, train employees and management on the rules and strictly enforce compliance. Relentless enforcement of coronavirus-related safety rules benefits risk management and employee well-being. Employers will find it preferable to address the complaints of an employee who believes workplace protocols are too strictly enforced over those of one who believes protocols are incomplete or too lax.
- Monitor public health and legal developments. Just as the pandemic continues to evolve, so do public health and legal rules. Adjust workplace practices accordingly and do so promptly.
3. Paid Sick Leave and FMLA Leave Violations
Employees are regularly filing actions alleging that employers wrongfully failed to honor requests by employees impacted by COVID-19 for paid sick leave (PSL) or family medical leave. The lawsuits allege employers denied Emergency Paid Sick Leave or Expanded Family Medical Leave in violation of the Families First Coronavirus Response Act (FFCRA), standard paid sick leave under state and local laws and standard FMLA leave or similar leave afforded under state laws, such as the California Family Rights Act. In addition to claiming that employers wrongfully refused to grant leave to qualified employees, lawsuits allege that employers fired those making the requests.
Interestingly, despite the fact that the FFCRA has been in effect since April 1, 2020 and the widespread attention and urgency given to the FFCRA and employer compliance by agencies, law firms, HR professionals and others, to date, lawsuits continue to be filed at a steady pace alleging FFCRA violations.
- Employers must know the PSL and leave rules under the FFCRA and in their local jurisdiction and ensure that the supervisors, managers and HR staff who receive or decide requests for PSL or leave are trained, including on the most recent developments.
- Be smart and pay attention to the human dynamic. Where the employee requesting PSL or leave claims or is known to be pregnant or suffering from a serious medical condition, is older or is raising a childcare issue, the employer should exercise extra caution in how it responds to the request. Employees with these challenges may make for a sympathetic plaintiff later.
4. Failure to Accommodate Disabilities
Employees with disabilities making them more vulnerable to contracting COVID-19 are also suing based on claims that their employers refused to extend accommodations the plaintiffs needed to perform their work safely. The most frequently requested accommodation is working from home. Complaints allege, for example, that the plaintiffs suffer lung disease, diabetes, or kidney or liver disease or are immunocompromised (due, for example, to cancer or cancer treatment, HIV or AIDS). The plaintiffs making these claims are often older, and in those instances their complaints allege their advanced age also contributed to their vulnerability.
Employees who allege they requested to work remotely when they were pregnant at the direction of their physician make up a noteworthy number of these actions. The complaints in these lawsuits allege that the employer-defendants refused their requests to work from home, forcing them to choose between safeguarding their health while pregnant and keeping their jobs or income during the COVID-recession.
The complaints in this category allege, finally, that the plaintiffs were either fired for requesting accommodation or were denied the accommodation, for example, to work from home, and were thereby wrongfully forced from their jobs.
- Engage in a genuine, thoughtful interactive dialogue with the employee requesting accommodation. Do not rush the process and do not make hasty decisions. It is rarely necessary to make immediate decisions on requests for reasonable accommodation. Often a temporary accommodation can be reached, such as permitting a pregnant employee to work remotely until she commences pregnancy disability or other protected family leave.
- For employees with permanent disabilities, consider accommodations such as moving the employee’s office or work station to a part of the facility that is removed from other employees, allow them to participate in meetings by phone, rather than in person, etc. Be creative. It is generally better to bend a bit farther and retain an employee who feels heard and respected than suffer the cost of turnover and risk litigation.
5. Wage and Hour Actions
It is reasonable to expect that, in connection with personnel actions taken due to the pandemic, wage and hour lawsuits are being filed that would not have been, absent COVID-19. In fact, the frequency with which such actions are being filed is picking up. It is important to keep front of mind that employees working remotely, employers cutting wage rates, layoffs, RIFs and a variety of the other now-common personnel actions may have significant consequences in terms of wage and hour obligations and potential liability.
The coronavirus pandemic is unquestionably responsible for a growing tsunami of litigation. As of the date of this article, well over 3,000 lawsuits relating to COVID-19 have been filed in state and federal courts in practice areas including labor and employment, insurance coverage, education, prisoner and detainee rights, finance, real estate, etc.
Our team’s continuing project gives us valuable insight not only into identifying the types of employment cases most frequently filed nationally involving coronavirus and the states in which they are filed, but the frequency with which specific industries are being sued, and enables us to identify the cases individually and by city, court, judge, and other factors.
We will continue to monitor the development of this wave of employment litigation.
For information about COVID-19-related labor and employment claims, contact Jeffrey Horton Thomas at [email protected], or any other member of our national Labor & Employment Department.