Bracing for COVID-19 Litigation – What to Expect and How to Avoid It

by Robert P. Rudolph

It is widely accepted throughout the legal community that there will be a wave of COVID-19 related litigation once the immediate impact of the pandemic settles. As COVID-19 spread, employers quickly closed their offices and transitioned employees to remote working without time to plan. When the dust settles, employers should expect that they will be faced with new pandemic-related employment claims, some of which will likely be regarding pay, sick leave, workplace safety, layoffs, discrimination and accommodations.

The sudden closure of essential businesses forced many employees to work remotely on little notice. This rapid change made it more difficult for employers to track the number of hours employees worked and to ensure that employees were working when they were supposed to, taking the required breaks and not working overtime. This will likely expose employers to costly litigation, including potential class action lawsuits, alleging violations of both federal and state wage and hours laws for failure to provide mandated breaks and overtime pay for non-exempt employees. Also, remote work may have required some employees to buy equipment or use personal devices for work, and the employer may be required to reimburse employees for such items. The Fair Labor Standards Act prohibits employers from requiring employees to pay for items that are business expenses of the employer if doing so reduces the employee’s earnings below the minimum wage.

The Families First Coronavirus Response Act (“FFCRA”) requires private employers with fewer than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19, including up to two weeks (80 hours) of paid sick leave at the employee’s regular rate of pay when the employee is unable to work because the employee is quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. These provisions apply through December 31, 2020. As the pandemic continues, it is likely that employers will face suits alleging breach of the FFCRA. Employers need to determine who is eligible for leave pursuant to the FFCRA, provide employees with the proper leave, if appropriate, and avoid making employment decisions that could be deemed as retaliatory for an employee’s use of leave permitted by the FFCRA.

Safety is a top priority as non-essential businesses re-open across the country. The Occupational Safety and Health Act’s general duty clause requires employers to furnish a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. As employees are brought back to work in an office setting, the Occupational Safety and Health Administration is likely to see an increase in the number of employee-filed claims for violations of the general duty clause and employers are likely to see claims for workers’ compensation, alleging COVID-19 was contracted on the job. Wage laws also generally require employees to be paid for all hours worked. If an employee spends extra time waiting for a temperature check or cleaning personal protective equipment as he or she is brought back to work in an office, employers should expect to see wage claims if employees are not paid for that time.

It is also expected that employers who chose to downsize after the pandemic will see an array of discrimination-based claims when deciding which employees to let go and which to bring back. One of the most anticipated difficulties is that as offices re-open and recall employees, some employees will be reluctant to return. If an employee has a condition which makes him or her more susceptible to COVID-19, it may invite claims for breach of state or federal disability laws. For example, under the Americans with Disabilities Act, a worker with an underlying medical condition may ask that he or she be allowed to continue to work remotely. These cases, if not handled properly, are likely to result in increased litigation. Employers are also facing “wrongful retention” lawsuits. Some employees prefer to be laid off because of the increased benefits available through unemployment assistance programs. As a result, employees are filing claims for “wrongful retention” – that similarly situated employees not in a protected class were laid off, while the employee asserting the claim in a protected class was required to report to work.

There is no doubt that employers will face COVID-19 related issues and claims filed by employees as time goes on. Employers should consult with counsel prior to making COVID-19 related employment decisions.

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