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Coronavirus Employment Litigation: Court Filings to Date

28 May Coronavirus Employment Litigation: Court Filings to Date

We previously discussed some of the basic legal concerns for employers as news of COVID-19 first emerged, including what guidance was received from some federal agencies and basic precautions that employers should take. As of May 2020, as predicted, there have already been a number of COVID-19 employment lawsuits. Below, we review some of the common employment claims brought between March and May; including allegations that employers violated employment laws, such as COBRA, discrimination laws, FMLA, FFCRA, WARN, wage and hour laws, and laws barring unsafe working conditions, retaliation, and wrongful discharge. We also discuss some of the likely litigation topics on the horizon for employers, including discrimination and privacy claims, as well as new federal and state regulatory standards.

Court Filings, March – May, 2020

Of the many cases against employers that were filed between March and May, the following encompasses a summary of the main legal claims made in connection with the pandemic:

  • Failure to provide notices under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and/or providing defective notices
  • Engaging in disability discrimination by failing to accommodate requests to take leave related to COVID-19, requests to work from home, etc.
  • Retaliating against employees for taking leave related to COVID-19 under the Family and Medical Leave Act (FMLA)/Families First Coronavirus Response Act (FFCRA)
  • Failure to take appropriate measures to ensure that the workplace was free from hazardous conditions and provide personal protective equipment (i.e. unsafe working conditions)
  • Violating the law with respect to retaliation, whistleblowing, and wrongful discharge laws against employees for objecting to unsafe working conditions
  • Violating wage and hour laws regarding remote work done by nonexempt employees (poor recordkeeping connected to employees working from home will likely spurn a number of additional wage and hour claims)
  • Laying off workers without providing them with proper notice under the Worker Adjustment and Retraining Notification Act (WARN)

What is Coming: Disparate Treatment and Discrimination

It is also expected that, in the future, a number of employers will also face disparate treatment claims concerning some employees being furloughed versus laid off — specifically, that these decisions did, in some circumstances, disproportionately affect protected classes. There have also been rumors of those who have concerns that their hours and pay were potentially reduced due to other discriminatory factors, such as having children at home and employers assuming that they would not be as productive as employees who do not have children.

New COVID-19 Federal and State Safety Standards in The Workplace

In addition, as some workers return to their offices, litigation will also arise regarding employer compliance with new federal and state safety standards specifically geared towards protecting workers from exposure to the coronavirus in the workplace. The Equal Employment Opportunity Commission regularly changes and updates its guidance for employers concerning the laws and workplace safety (the last update was on May 7). As a result, there is no question that employers will need to work with employment law attorneys to not only stay on top of current requirements, but also develop new plans and policies for reopening their businesses in order to ensure that they are in keeping with new laws and regulations. For example, policies should include a prohibition on using other employees’ desks, phones, etc.

Employers, Employees, and Privacy Concerns

Employers are also going to face a number of challenges when it comes to striking a balance between ensuring that workplaces are safe and in compliance with new state and federal standards, while also not violating employees’ privacy concerns. At a minimum, there will be privacy concerns when it comes to new procedures such as temperature checks, as well as employee questionnaires geared toward gathering as much information as is necessary from employees in order to make appropriate safety determinations, screen for the virus, and minimize hazards to other employees. Issues will also inevitably arise when it comes to trying to protect employees who are especially vulnerable to the virus, such as those with compromised immune systems, while also avoiding violations of the Americans With Disabilities Act.

Contact the Very Best in Employment Litigation Attorneys

Blum Law Firm is available during this time to ensure that you are prepared for any employment litigation issue, whether that involves ensuring that you are in compliance with the law, finding out if you have a legal claim that you can bring in California or New York, or any other legal questions or concerns. Contact our office today to find out more.