Ten Ways Employers Are Now at Risk for Lawsuits

As businesses previously forced to close move toward reopening or bringing furloughed employees back to work, employers must heed a disturbing trend of increased employee lawsuits arising from doing business during a pandemic. Federal Court employee lawsuits rose more than 215% from March 2020 to May 2, 2020. Employee claims arising out of the pandemic include the usual wage and hour, whistleblower, contract, wrongful termination, protected leave, and discrimination claims arising in “unusual” situations created by a massive disruption to the nation’s workforce.

Here is a list of ten ways employers are at risk of getting sued during this time:

1. Wage and Hour Suits for Unpaid Time
   When workers return to work, time spent filling out screening forms, temperature taking, and donning and doffing of personal protective equipment is likely compensable. Employers who are offering “hazard” or “hero” pay premiums should include the premium in the employee’s regular rate of pay for overtime calculation or sick leave pay. For remote non-exempt workers, exposure may arise if those employees are not taking the required meal and rest breaks.
2. Leave Laws
   Employees eligible for leave under the new Families First Coronavirus Response Act (FFCRA), FMLA, ADA, and/or state paid sick leave may bring interference and/or retaliation claims for the use of all leave related to COVID-19.
3. Layoffs
   If employers are bringing anything less than all their employees back to work, they must be mindful to return employees using the same objective criteria as preparing for layoffs to reduce the risk of discrimination. Employees not chosen to return to work or whose return is delayed compared to other workers could claim disparate impact or bias. For example, high earning employees may bring age bias claims if not recalled to work.
4. Disability Discrimination
   Employees required to return to work may be reluctant due to underlying health conditions. Employers must ensure a robust, ADA interactive process and consistently administer it. Working from home will likely be considered a reasonable accommodation if an employee has been successfully performing their job at home for the past two months.
5. Safety Claims
   Employers must ensure employees are returning to a safe workplace by implementing new safety standards such as appropriate screening of employees, physical distancing, and cleaning of workspaces as recommended by federal, state, and local agencies. OSHA is prepared to conduct inspections and investigate employee safety complaints concerning social distancing, screening, sanitization, and PPE.
6. Whistleblower Retaliation Claims
   Employees are protected from retaliation when reporting safety concerns such as complaints that co-workers are not wearing required face coverings or observing physical distancing.
7. Discrimination Claims
   COVID-19 has fueled anti-Asian discrimination and intolerance, violating laws on harassment and discrimination. Additionally, there is legal protection from discrimination or harassment due to an employee’s association with someone who has a disability. An example would be an employee whose parent or spouse tested positive for COVID-19.
8. Civil Claims from Employees
   Claims of employer negligence have surfaced by employees claiming they have contracted the virus in the workplace. In April 2020, in one of the first COVID-19-related lawsuits of its kind, the estate of an Illinois Walmart Supercenter employee sued Walmart and the premises owner for wrongful death after the employee died from contracting the virus. Each state may resolve differently the question of whether COVID-19 infection is sufficiently related to employment to fall under a state’s workers’ compensation law. For example, California amended its Workers’ Compensation to provide compensation for employees who contract the virus in the workplace.
9. Employee Contract Claims
   Employers forced to cut wages, benefits, and/or jobs may face contractual claims arising from employment contracts that create a promised term of employment, offer letters, written handbook policies on compensation, fringe benefits, and/or severance.
10. Unfair Labor Practices
    The National Labor Relations Act (NLRA) protects union and non-union employees from adverse employment action due to engaging in protected concerted activity. Protected concerted activity includes work stoppages, demands for premium pay, improved working conditions, public protests, and social media appeals.

Many employers are concerned about reopening due to the risk associated with being held liable if one of their employee’s contracts coronavirus after coming back to work. Under consideration is recent federal legislation in the form of The Employer and Employee COVID Protection Act, which would provide immunity from coronavirus lawsuits to employers that comply with state and federal laws on reopening. Employees who have health concerns would be able to request special accommodations from their employer and would remain eligible for unemployment benefits if returning to work is too risky. If passed, this legislation will not reduce the employer risk of complaints in all of the areas of risk listed above.

Archbright eligible members are encouraged to call the HR Hotline, attorneys, and/or Safety Hotline to discuss any or all these ten areas of risk. Archbright can also provide eligible members safety inspections, handbook review, legal review of employment agreements, and/or administrative representation if a complaint from the NLRB, Labor & Industries, or the EEOC is received.