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Litigation Amid the Covid-19 Pandemic: Emerging Trends in Employment Law

May 27, 2020

Covid-19 forces employers to make difficult and often times unprecedented decisions as businesses in nearly all industries face falling revenue and inconsistent governmental restrictions. The resulting decisions regarding human resources practices and policies exposes thousands of employers to existing and emerging liabilities, adding to the impact of the pandemic.

Workplace Safety

Employers have an overriding duty to maintain a hazard-free workplace. This duty is based in part on statutes, including the Occupational Safety and Health Act and associated state and local laws. Data recently published by the Occupational Safety and Health Administration shows that workplace safety inspectors have already conducted nearly 200 coronavirus-related investigations to determine whether employers failed to adequately protect their workers from the virus. These investigations have targeted hospital, nursing homes, school systems, meatpacking plants and can be expected to expand to more industries in the days and weeks to come. State agencies are also beginning to investigate reports of inadequate protections. The Office of the Attorney General for the State of New York’s recently sent a letter to Amazon regarding the Attorney General’s “concerns” that Amazon’s health and safety measures for warehouse workers are so inadequate that they may be in violation of federal and state laws.

As non-essential businesses begin to re-open and join essential businesses in operating during the pandemic, questions and concerns regarding what safety measures in a given industry are adequate will grow. As no standard protocol exists to fit every industry, a consensus is emerging among employment law practitioners and employers to proceed with extreme caution, while tailoring new practices and procedures to the unique challenges and risks associated with each business’s operations. As risks of re-opening are weighed, employers must be aware of directives from the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration, as well as the statutory and regulatory frameworks governing testing in the workplace and employee privacy rights.

The importance of practical and thorough workplace safety programs is not just a matter of legal compliance. Employees and union groups are already expressing concern that the rush to re-open favored by some governments and industry sectors is deprioritizing worker safety. In the months and years ahead, we will see a growing wave of agency investigations, lawsuits, workers’ compensation claims and whistle blower complaints by employees challenging the adequacy of new measures and a heightened focus on workplace safety. As with many issues in this new environment, good public health practices will be good business practices.

Disability and Leave Discrimination

In the past few weeks alone, employers have adopted, often at unprecedented speed, new policies and procedures in response to shelter-in-place orders and growing demands for medical leave. In practice, however, implementing these policies and ensuring clear lines of communications with employees has presented a significant challenge. Already, courts are seeing new lawsuits arising from perceived unlawful practices and policies by employers in response to Covid-19:

  • Former employee of Kroger filed a lawsuit claiming the grocer violated its own recently adopted policy to provide employees affected by the coronavirus up to 14 days of paid leave when her next paycheck failed to credit her despite providing a doctor note directing her to self-isolate.
  • Former general counsel for a real estate firm filed a lawsuit against her company for refusing to change its policy to permit her to work from home, which she claims was necessary to avoid violating shelter-in-place orders and facing possible criminal prosecution.
  • A receptionist filed a lawsuit claiming discrimination and harassment based on her mild Spanish accent after being terminated on the grounds that because she visited her daughter’s school, she might have contracted Coronavirus.
  • In two separate class-action matters filed days apart against two well-known ride sharing companies, drivers alleged the company failed to provide paid sick leave compelling the drivers to continue working during the pandemic even if they felt ill.
  • An infectious disease nurse has filed a lawsuit claiming she was terminated when she raised complaints that her department was only given regular surgical masks instead of N95 masks.
  • A major retailer is facing a wrongful death lawsuit after an employee died of COVID-19 complications.

Historical data on filings following an economic downturn offer additional reasons for concern. As reported by the Equal Employment Opportunity Commission, in the period since 1997, annual charges peaked in 2011 at 99,947 following the recession in 2008, after a historic low in 2005 of 75,428 charges. The data indicates that between 2007 and 2008, total annual EEOC filings increased by nearly 13,000. The speed and depth of the current economic downturn far out paces the recession of 2008, begging the question of what truly should be expected going forward. Millions of recently laid off, terminated and furloughed workers will question the policies and practices of their former employers over the past weeks and months. Employers need to be prepared.

Covid-19 forces employers to make difficult and often times unprecedented decisions as businesses in nearly all industries face falling revenue and inconsistent governmental restrictions. The resulting decisions regarding human resources practices and policies exposes thousands of employers to existing and emerging liabilities, adding to the impact of the pandemic.

Workplace Safety

Employers have an overriding duty to maintain a hazard-free workplace. This duty is based in part on statutes, including the Occupational Safety and Health Act and associated state and local laws. Data recently published by the Occupational Safety and Health Administration shows that workplace safety inspectors have already conducted nearly 200 coronavirus-related investigations to determine whether employers failed to adequately protect their workers from the virus. These investigations have targeted hospital, nursing homes, school systems, meatpacking plants and can be expected to expand to more industries in the days and weeks to come. State agencies are also beginning to investigate reports of inadequate protections. The Office of the Attorney General for the State of New York’s recently sent a letter to Amazon regarding the Attorney General’s “concerns” that Amazon’s health and safety measures for warehouse workers are so inadequate that they may be in violation of federal and state laws.

As non-essential businesses begin to re-open and join essential businesses in operating during the pandemic, questions and concerns regarding what safety measures in a given industry are adequate will grow. As no standard protocol exists to fit every industry, a consensus is emerging among employment law practitioners and employers to proceed with extreme caution, while tailoring new practices and procedures to the unique challenges and risks associated with each business’s operations. As risks of re-opening are weighed, employers must be aware of directives from the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration, as well as the statutory and regulatory frameworks governing testing in the workplace and employee privacy rights.

The importance of practical and thorough workplace safety programs is not just a matter of legal compliance. Employees and union groups are already expressing concern that the rush to re-open favored by some governments and industry sectors is deprioritizing worker safety. In the months and years ahead, we will see a growing wave of agency investigations, lawsuits, workers’ compensation claims and whistle blower complaints by employees challenging the adequacy of new measures and a heightened focus on workplace safety. As with many issues in this new environment, good public health practices will be good business practices.

Disability and Leave Discrimination

In the past few weeks alone, employers have adopted, often at unprecedented speed, new policies and procedures in response to shelter-in-place orders and growing demands for medical leave. In practice, however, implementing these policies and ensuring clear lines of communications with employees has presented a significant challenge. Already, courts are seeing new lawsuits arising from perceived unlawful practices and policies by employers in response to Covid-19:

  • Former employee of Kroger filed a lawsuit claiming the grocer violated its own recently adopted policy to provide employees affected by the coronavirus up to 14 days of paid leave when her next paycheck failed to credit her despite providing a doctor note directing her to self-isolate.
  • Former general counsel for a real estate firm filed a lawsuit against her company for refusing to change its policy to permit her to work from home, which she claims was necessary to avoid violating shelter-in-place orders and facing possible criminal prosecution.
  • A receptionist filed a lawsuit claiming discrimination and harassment based on her mild Spanish accent after being terminated on the grounds that because she visited her daughter’s school, she might have contracted Coronavirus.
  • In two separate class-action matters filed days apart against two well-known ride sharing companies, drivers alleged the company failed to provide paid sick leave compelling the drivers to continue working during the pandemic even if they felt ill.
  • An infectious disease nurse has filed a lawsuit claiming she was terminated when she raised complaints that her department was only given regular surgical masks instead of N95 masks.
  • A major retailer is facing a wrongful death lawsuit after an employee died of COVID-19 complications.

Historical data on filings following an economic downturn offer additional reasons for concern. As reported by the Equal Employment Opportunity Commission, in the period since 1997, annual charges peaked in 2011 at 99,947 following the recession in 2008, after a historic low in 2005 of 75,428 charges. The data indicates that between 2007 and 2008, total annual EEOC filings increased by nearly 13,000. The speed and depth of the current economic downturn far out paces the recession of 2008, begging the question of what truly should be expected going forward. Millions of recently laid off, terminated and furloughed workers will question the policies and practices of their former employers over the past weeks and months. Employers need to be prepared.

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