How Covid-19 employment litigation is taking shape

The Covid-19 pandemic has spawned a wave of employment litigation directly and indirectly based on related health risks and employers’ response to the crisis. This column provides our initial impressions from our data collection and analysis of those cases, and our thoughts on how companies can try to limit their potential liabilities.

TYPES OF LAWSUITS
In both state and federal courts, employees have advanced a wide variety of claims in response to Covid-19’s effect on their workplace. Given the unprecedented nature and breadth of the pandemic and corresponding economic repercussions, the claims cover a rather broad range of topics, but those advanced so far tend to fall into one or more of several categories:

• Failure to provide a safe working environment: These claims have been asserted as negligence claims, violations of state or federal workplace safety laws and Covid-19 safety protocols, and even wrongful death claims. Common allegations include failure to provide workers with adequate personal protective equipment (PPE) and failure to implement customer or visitor policies, such as required temperature checks or masks, to protect employees
   
• Discrimination claims: Age and disability discrimination claims dominate Covid-19-related filings to date. For instance, a 70-year-old plaintiff in New Jersey state court alleged that he was denied a work-from-home accommodation that he requested due to his medical condition and age, which he asserted presented additional risk of complications from Covid-19. Similar allegations – that a plaintiff was forced out of a job because of his age due to the employer’s concern about exposing an older worker to Covid-19 – appear in this early wave of litigation and are arguably supported by the US Equal Employment Opportunity Commission’s recent FAQ publication
   
• Leave claims: Numerous lawsuits have been filed alleging that employees have been unlawfully denied sick leave or family and medical leave for reasons related to Covid-19 under the Family Medical Leave Act, the Families First Coronavirus Response Act, state and local paid leave laws and employer sick-leave policies
   
• Retaliation and whistleblower claims: Typically asserted in reference to an employee’s termination, retaliation claims commonly appear in these early Covid-19-related cases. Frequently, these lawsuits assert that an employee was terminated for complaining about workplace safety or working conditions – including complaints about the failure to provide appropriate PPE or the failure to comply with applicable Covid-19 safety protocols – or for exercising leave rights related to Covid-19. Some of these cases have also been couched in terms of state-law claims for wrongful termination against public policy
   
• Wage-and-hour claims: Although the usual litany of wage-and-hour class and collective actions continues seemingly without regard to the pandemic, a number of new filings have involved circumstances directly caused by Covid-19 business impacts. For example, cases disputing compensation practices related to sanitation and hygiene protocols, expanded schedules and on-call time have been filed in significant numbers across the country. In addition, a number of cases asserting an employer’s failure to pay contractually agreed commissions or fees have been filed
   
• Other categories of claims are also reasonably foreseeable. For example, wage-and-hour claims motivated by changes in working schedules or venues – for example, work-from-home situations – and state-law-dictated expense reimbursement claims have not yet reached critical numbers, but may become a more fertile area for employee litigants in the coming months.

AFFECTED INDUSTRIES
Although no industry has been completely immune to this early wave of litigation, certain business sectors have seen heightened litigation activity as a consequence of the pandemic. Three stand out due to either the risk of Covid-19 exposure or the typical conditions under which these businesses operate.

First and foremost, the healthcare sector has been targeted by employees and their unions, patients and residents. In the words of the Centers for Disease Control, ‘[g]iven their congregate nature and resident population served ([for example], older adults often with underlying chronic medical conditions), nursing home populations are at high risk of being affected by respiratory pathogens like Covid-19.’

Pharmacies and other healthcare businesses also experience the confluence of being an essential business and frequent exposure to potential Covid-19 patients. Perhaps predictably, nursing homes, other residential or in-patient medical facilities and other healthcare businesses are starting to see a wave of claims alleging failure to provide a reasonably safe workplace for healthcare provider staff and other employees.

Similarly, manufacturers have seen a significant share of newly filed Covid-19-related employment cases. Manufacturing environments often involve close-contact, indoor operations. Unlike healthcare facilities, manufacturing operations may not have the level of familiarity with PPE designed to inhibit the transmission of respiratory diseases. Accordingly, employees in these environments have tended to bring more claims related to workplace safety issues and attempts to exercise leave rights.

Finally, retail businesses have seen a variety of Covid-19-related claims. Many were permitted to remain open under state and local shelter-in-place orders and the rest are slowly reopening. Employees of these retailers have brought a panoply of claims related to accommodations needed for existing disabilities, working conditions and retaliation.

PROACTIVE STEPS TO AVOID COVID-19 LITIGATION
Although each lawsuit involves a close examination of the applicable law and relevant facts, there are some initial measures employers can take to minimize the risk of being sued and mitigate the potential exposure once a Covid-19-related lawsuit has been filed.

First, businesses should have a return-to-work plan that addresses some of the safety concerns that occupy a central place in this recent spate of lawsuits.

Second, employers should prioritize addressing systemic issues that could affect large groups of employees. Employers should make time to create – and demonstrate efforts to comply with– solid policies that address and minimize risks and concerns that could impact different employee populations on a collective basis.

Third, employers should review existing policies and consider their application in the context of Covid-19. Policies typically used to provide reasonable accommodations for qualified employees with disabilities may have broader application in light of the pandemic, and employers should consider whether it is feasible and desirable to extend the accommodation process to individuals whose medical conditions place them at higher risk of serious illness if they contract Covid-19.

Similarly, employers should carefully consider whether any of their efforts to promote a safe workplace – even those intended to protect older workers or workers with a medical condition that heightens risk – could have a discriminatory effect on the basis of protected characteristics.

Wage-and-hour policies could also be implicated as workers are asking – and being asked – to work in different venues or with different hygiene protocols. Existing policies likely do not address those situations from a pay perspective, so employers should either issue specific guidance to employees on these issues or contextualize existing policies. Consulting with attorneys to develop the appropriate approach may help avoid the types of lawsuits now being filed in substantial numbers.

Matthew Gagnon, Steve Shardonofsky, Jim Swartz and Coby Turner are partners with Seyfarth Shaw