COVID-19 employment litigation update

COVID-19 has affected each of our lives in various ways and has affected many businesses and the economy quite drastically.

Aside from the pandemic itself, additional requirements pertaining to health and safety, social distancing, job-protected leave and more have left employers scrambling to keep up with the rapidly changing regulatory environment. Plaintiff's lawyers have leapt at the opportunity to file lawsuits against employers pertaining to COVID-19 specific claims.

Given the rapidly changing nature of the pandemic, it is safe to assume employers will continue to be a target in this area.

Claims against employers pertaining to COVID-19, as in many areas of the law, tend to be widely varied. However, we have identified a number of trends in the COVID-19 related employment litigation sphere, including:

• Leave-based claims: Various lawsuits have been filed pertaining to the alleged unlawful denial of sick or family medical leave under the Family Medical Leave Act (“FMLA”), Families First Coronavirus Response Act (“FFCRA”), employer internal policies and state or local paid leave laws.

One example of this trend is a case recently filed in Florida, Kofler v. Sayde Steeves Cleaning Service, Inc., alleging the employer failed to provide paid leave under the FFCRA, did not respond to the employee when she requested leave time to care for her minor children home due to COVID-19 and allegedly terminated the employee for taking leave.

In another recent case in Kentucky, Thornberry v. Powell County Detention Center, an employee claimed the employer failed to take appropriate safety precautions and terminated her in violation of the FMLA and FFCRA when she stayed home from work due to alleged illness.

• Safe working environment claims: Employees have brought claims against employers for allegedly failing to provide safe working environments. Some involve allegations that employers failed to provide personal protective equipment (“PPE”), failed to adequately perform temperature testing or require mask use/social distancing and, in some cases, include allegations of employer violations of state, federal or local safety laws and/or COVID-19 regulations.

An example of this trend is a case filed in Missouri, Rural Community Workers Alliance v. Smithfield Foods, Inc., where employees sought a temporary restraining order against their employer for allegedly failing to adequately protect workers at its meat processing plant by failing to implement COVID-19 screenings, social distancing, PPE and more.

Another case filed in California, Brooks v. Corecivic of Tennessee LLC, alleges similar unsafe working conditions and adds allegations that the employer failed to properly clean devices used by staff and the facility itself.

• Discrimination claims: Plaintiff's lawyers are prone to seize on any potential discrimination claims, even in normal circumstances. In the COVID-19 context, these claims are appearing in the context of alleged discriminatory termination, layoff or furlough decisions based upon protected characteristics.

For example, a New York case, Kanyuk v, Shearman & Stearling LLP, alleged that Plaintiff was the first worker to be targeted during COVID-19 related layoffs because of his age. Some of these claims are based on what employers may see as policies to help vulnerable workers, such as workers who are older or have certain medical conditions that could place them at more risk.

As the EEOC recently reminded employers in its COVID-19 FAQs those workers must not be treated less favorably based on their age or a concern that the individual will be exposed to COVID-19, without medically based evidence that coming to work will create a significant risk of substantial harm to themselves or others. In addition, we are seeing claims pertaining to denials of requested accommodations for individuals with alleged disabilities, including COVID-19 itself.

• Wage and hour claims: Claims related to wage and hour disputes exist extensively outside of the realm of COVID-19; however, the pandemic has provided plaintiffs the opportunity to raise new or additional claims, including claims related to compensation for on-call time, donning/doffing time for hygiene or sanitation and more. An example of this trend is an Illinois case, Evans et al. v. Dart et al., where Plaintiffs (through a collective action under the FLSA) allege they were not paid regular or overtime wages for time spent sanitizing themselves, their uniforms and PPE.

While these are the four most common categories of employment-related claims involving COVID-19 that have been filed in state and federal courts across the country, other claims are also being raised, such as breach of contract when an employee is furloughed or separated in a manner that allegedly violates an employment agreement.

Beyond litigation, the Department of Labor also has conducted investigations into various claims raised by employees or conducted on its own volition. The DOL has ordered back wages paid to employees denied paid sick leave after COVID-19 diagnoses in numerous instances.

Employers should take proactive steps to prevent and avoid being the subject of these kinds of lawsuits and investigations. Those steps include careful application of the leave requirements, compliance with state and local orders related to COVID-19 and workplace safety measures and thoughtful (preferably documentable) decisions related to the reasons employees are chosen for furloughs and layoffs (while being mindful of any contractual requirements).

Please contact any member of our Labor, Employment & Immigration office for assistance with these or any other employment-related decisions you are making during this unique period and beyond.

Cameron Ritsema
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