Anticipating and preparing for COVID-19-related employment litigation

By Kerrie R. Heslin, Esq., Ryan S. Carlson, Esq., and Robin H. Rome, Esq.,
Nukk-Freeman & Cerra P.C.

This article appeared on the Westlaw Practitioner Insights Commentaries web page on July 2, 2020.
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INTRODUCTION

Although certain health and financial ramifications of the coronavirus pandemic appear to be improving, the litigationrelated fallout is just beginning. The pandemic has triggered a significant rise in unemployment, with over 20 million Americans currently out of work — a statistic that historically correlates to increased litigation.(1)

It also has triggered concerns in the areas of workplace safety, discrimination, retaliation, leave and accommodations. The federal and state governments have responded by increasing their enforcement efforts, expanding existing laws, and passing new statutes and regulations focused on addressing the impact of the
pandemic and COVID-19.

Attorneys have responded by filing over 2,700 lawsuits from the start of the pandemic through mid-June, many asserting novel and untested legal claims.(2) All of this translates into increased risks for employers, who must not only be aware of these risks, but consider taking steps to prepare for and reduce them.

WORKPLACE SAFETY CLAIMS

In light of the health implications of COVID-19, workplace safety will be at the forefront of the legal landscape. The law offers scant guidance about how employers are required to provide a safe work environment.
Under the Occupational Safety and Health Act (OSH Act), there is a “general duty” to ensure that the workplace is “free from recognized hazards that are causing or likely to cause death or
serious physical harm.”(3)

While the OSH Act does not empower employees to sue over unsafe work conditions, they can file complaints with the Occupational Safety and Health Administration (OSHA), prompting workplace safety investigations and government enforcement actions. There is a tight timeframe to bring an OHSA complaint. The
complaint must be filed within 30 days, after which OSHA conducts a fact-finding investigation. OSHA can award an employee reinstatement, back pay, emotional distress damages, punitive damages and non-monetary relief.

As of May 25, 2020, employees have already filed 6,645 OSHA complaints arising from COVID-19.(4)
In addition, employers face an increasing number of workers’ compensation claims. In the normal course, if an employee is injured at work, his or her exclusive remedy is under the state’s workers compensation act.
The remedies available under the workers’ compensation act are limited, as is the employer’s liability. For an employee involved in a workplace accident, the causal connection between the workplace and injury is relatively straightforward.

In the case of COVID-19, which is susceptible to community spread, this causal connection is questionable and employees may have an uphill burden in proving that they contracted the virus at work. States like New Jersey, New York and Pennsylvania have introduced bills to expand the state workers’ compensation laws to create a rebuttable presumption of causation for employees of essential businesses who contract COVID-19.

In New Jersey, the presumption would only be overcome by a preponderance of the evidence showing that the worker was not exposed to the disease while at work,(5) a difficult burden to meet. While state workers’ compensation laws generally block employees from filing private lawsuits over workplace injuries, the bar is not absolute. There are exceptions to the workers’ compensation exclusivity rule — for example, when the employer engages in intentional conduct that harms employees or fraudulently conceals existing occupational injuries or diseases from an employee. This is the basis of several lawsuits filed by employees of Royal
Caribbean Cruises.(6)

In those cases, employees claim the company did not safeguard them from COVID-19 by failing to take necessary precautions, ignoring recommendations of the Centers for Disease Control and Prevention (CDC), and failing to promptly diagnose infected workers, which led to injuries and three deaths.

Creative plaintiffs’ attorneys are finding other bases for claims against employers, such as public nuisance lawsuits. In Illinois, employees and their families recently filed suit against McDonald’s restaurants under the state’s public nuisance law.

They allege the employer’s dereliction of duties has created a public nuisance and are seeking injunctive relief to abate the public nuisance.(7) The public nuisance theory skirts the limits of the workers’ compensation laws because it sues employers not for how they treat workers, but for how the treatment of workers affects the surrounding community.

Finally, in extreme circumstances, an employer’s failure to provide a safe work environment could lead to wrongful death actions. We have already seen the first of this type of claim in a lawsuit filed against Walmart.
The relative of a Walmart employee who died of COVID-19 has filed a wrongful death lawsuit claiming the retailer failed to implement, promote and enforce social distancing guidelines, failed to cleanse and sanitize the store, and failed to provide personal protective equipment such as masks, gloves and wipes.(8)

RETALIATION CLAIMS

Employees working at essential businesses operating during the pandemic or employees returning to work have raised, or inevitably will raise, concerns regarding personal protective equipment, social distancing and other health and safety issues.

At the same time, employers are making difficult business decisions due to the economic impact of the pandemic, such as reducing hours, cutting pay, and furloughing or terminating employees. This is the recipe for an increase in retaliation lawsuits.

Retaliation claims arise under various federal and state laws, administrative regulations and state common law. At the administrative level, Section 11(c) of OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions.

OSHA has more than 20 industry-specific federal laws protecting employees from retaliation for raising safety
concerns in various industries.

Sections 8(a)(1) and (3) of The National Labor Relations Act (NLRA) also prohibit employers from retaliating against employees who make safety complaints while engaging in concerted activity, i.e. complaining about safety issues on behalf of themselves and other workers.

The NLRA prohibits retaliation against both unionized and non-unionized non-supervisory employees. On March 30, 2020, the National Labor Relations Board (NLRB) issued one of its first decisions related to COVID-19, finding that a hospital violated the NLRA by firing an employee in retaliation for providing information to a newspaper about staffing shortages affecting workers at the hospital.(9)

In addition to these federal laws, employees have state whistleblower protections at their disposal. Many state
whistleblower laws, such as New Jersey’s Conscientious Employee Protection Act10, protect employees from retaliation for making safety complaints, even if they are wrong about their complaint, as long as the employee has an objectively reasonable basis for bringing the complaint.

Most of these laws also do not require employees to know with specificity the law they believe their employer is violating. These state laws typically provide remedies that are more attractive to employees, including back pay, front pay, emotional distress damages, punitive damages and attorneys’ fees.

About half the states also allow employees to bring retaliation claims based on a clear mandate of public policy concerning the health and safety of workers. Various other federal and state laws providing COVID-19
related benefits have their own anti-retaliation provisions, such as the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA) and similar state and local sick and family leave laws, and workers’ compensation laws.

DISCRIMINATION CLAIMS

The circumstances of the pandemic also present an increased risk for employment discrimination claims. These include claims for race and national origin discrimination or harassment resulting from xenophobia and actual or perceived disability discrimination against employees requesting or returning from COVID-19 related leave.

Since many employers are also reducing their workforces by implementing temporary furloughs or layoffs, they may unintentionally find themselves in a discrimination lawsuit as a result. For example, selecting older workers, pregnant workers or workers with known health issues for furlough or layoff as a means of insulating them from COVID-19 may give rise to discrimination claims.

Decisions may also disparately impact a particular protected class of employees. By example, a business that has hired diverse workers in the past year resulting from diversity and inclusion initiatives, may be exposed to a discrimination claim if it decides to layoff workers in order of seniority.

Employers should not overlook sexual harassment claims. Harassment can occur remotely on virtual platforms such as Zoom which many businesses have implemented for scheduling formal business meetings as well as informal company events like virtual happy hours.

These virtual means of communication are often ripe for employee misbehavior and offer much less employer
oversight.

LEAVE AND ACCOMMODATION CLAIMS

As the pandemic continues and employees begin to return to the physical workplace, employers face mounting legal risks dealing with leave and accommodation issues.

While employers may be ready to open, employees will still face challenges due to a COVID-19 diagnosis, quarantine for themselves or family members, and the lack of availability of childcare. Employers who fail to properly handle leave and accommodation requests will be at significant risk for lawsuits challenging their actions.

Leave for COVID-19 reasons
Employees impacted by COVID-19 may be covered by various leave laws, which differ in terms of employer
coverage, employee coverage, eligibility, duration, pay and documentation.

Depending on the law involved, impacted employees may file private lawsuits against employers or a complaint with the federal or state Department of Labor. Remedies include reinstatement, back pay and front pay, liquidated damages, and attorneys’ fees.

The Family and Medical Leave Act (FMLA) and Families First Coronavirus Response Act (FFCRA) provide job-protected leave to employees, depending on the size of the employer, if the employee is unable to work or telework because the employee or a family member is diagnosed with or has medical complications due to COVID-19, or if the employee has childcare issues caused by the coronavirus.

The FMLA, an existing law that applies to employers with 50 or more employees, provides qualifying employees with up to 12 weeks of full or intermittent leave within a 12-month period for the employee’s own medical condition or to care for an immediate family member with a “serious health condition.”

The FFCRA, a new federal law passed in response to COVID-19, applies to employers with less than 500 employees. The FFCRA took effect April 1, 2020, and applies to leave taken through December 31, 2020.

Unlike the FMLA, leave under the FFCRA is paid, employee service requirements are waived or significantly reduced depending on the type of leave, and it covers leave for six different COVID-19-related reasons.

The FFCRA covers two basic types of leave:

(1) Emergency Paid Sick Leave (EPSLA) provides employees unable to work or telework with up to 80 hours of paid leave; and (2) Emergency Family Medical Leave (EFMLA) provides employees with up to 10 weeks of additional paid leave for employees unable to work or telework because they are required to care for a child whose school or childcare facility is closed, or whose childcare provider is not available, because of COVID-19.

In addition to these federal leave laws, many states and localities have expanded their existing sick and family leave laws to provide paid and unpaid leave for COVID-19 situations.

These expanded laws are not just limited to leave for the employee’s COVID-19 diagnosis, but may require leave because the employee is unable to work due to closure of a child’s school or childcare due to a public order, a determination that the presence of the employee (or a member of the employee’s family in need of care by the employee) in the community would jeopardize the health of others, or isolation or quarantine of the employee or a family member in certain circumstances.

The first FFCRA lawsuit was filed only weeks after the law went into effect, with an airline employee suing her employer and two executives, claiming she was unlawfully terminated for requesting time off under the FFCRA to care for her child.(11)

Although the plaintiff’s FFCRA claims are questionable given that she was terminated before the law went into
effect, the case was a harbinger of the wave of lawsuits that have followed alleging unlawful denial of benefits under the FFCRA, retaliation for requesting FFCRA leave, and interference with FFCRA rights.

Accommodations for COVID-19 reasons
Depending on the severity and duration, COVID-19 may constitute a “disability” under the Americans With Disabilities Act (ADA) and analogous state and local laws. In addition, an employee may have an underlying impairment or limitation that would lead to serious complications if he or she is
infected with coronavirus.

While there is no exhaustive list of impairments and limitations, both the CDC and the Equal Employment Opportunity Commission (EEOC) have indicated that individuals with heart disease, diabetes, lung disease or
asthma, a weakened immune system, kidney disease and cirrhosis are considered at higher risk for developing serious complications due to coronavirus exposure.

In addition, the EEOC has noted that employees with mental health disabilities or anxiety because of increased stress related to COVID-19 may be covered by the ADA.

For these employees, an employer may be required to engage in the interactive process and provide reasonable
accommodations.

The types of accommodations may include extended leave, telework, modified work schedule, temporary job
restructuring or transfer, provision of personal protective equipment, changes to the work environment (such as oneway aisles, plexiglass or barriers), or other measures that reduce an employee’s risk of exposure to coronavirus.

The risk of litigation over these issues is apparent in cases filed over the past month.(12) In a case filed in Pennsylvania federal court, an attorney who contracted and recovered from COVID-19 sued his employer when the company declined his request to work remotely and terminated his employment after he complained that this decision was related to his continuing COVID-19 impairments.

Similarly, in a case filed in Massachusetts federal court, an engineer with high blood pressure who lived with his 81-yearold mother was terminated for job abandonment after he expressed concern about his employer’s directive that he come back to the office after working remotely.

These cases are representative of the types of failure to accommodate and retaliation claims that employers will see more and more as the pandemic and workplace continue to collide.

While the full health and financial ramifications of the pandemic are unknown, one thing is certain: the wave of litigation spurred by the coronavirus is just beginning.

As new laws are passed, clarifying regulations are implemented, and courts begin to address the novel
claims brought by employees impacted by the coronavirus, employers will continue to grapple with the legal fallout of the pandemic.

Employers must be vigilant about these risks and, most importantly, be prepared to take them on.

Notes
(1) United States Department of Labor, News Release: Unemployment
Insurance Weekly Claims, (June 11, 2020), dol.gov/ui/data.pdf (last visited
June 14, 2020).
(2) Hunton Andrews Kurth, COVID-19 Complaint Tracker, https://bit.
ly/2YE1VPb (last visited June 14, 2020).
(3) 29 U.S.C. § 654(a) (1).
(4) United States Department of Labor, Occupational Safety and Health
Administration, Weekly Reports, https://bit.ly/2Az7OVY (last visited
June 14, 2020)
(5) N.J. S.B. 2380 (May 4, 2020).
(6) Molchun v. Royal Caribbean Cruises Ltd., No. 1:20-cv-21792-UU
(S.D. Fl. filed Apr. 30, 2020).
(7) Massey v. McDonald’s Corporation, No. 2020-CH-04247 (Ill. Cir. Ct.,
Cook Cty., filed May 19, 2020).
(8) Evans v. Walmart, No. 2020-L-003938 (Ill. Cir. Ct., Cook Cty., filed
Apr. 6, 2020).
(9) Maine Coast Regional Health Facilities, 369 NLRB No. 51 (2020).
The Board also found that the Respondent’s media policy was unlawfully
overbroad under The Boeing Co., 365 NLRB No. 154 (2017), and that the
Respondent violated Section 8(a)(1) for maintaining and enforcing the
unlawful media policy against the employee.
(10) N.J.S.A. §§ 34:19-1-14.
(11) Jones v. Eastern Airlines, No. 2:20-cv-01927-RBS (E.D. Pa. filed Apr. 16,
2020).
(12) Burbach v. Arconic Corp., No. 2:20-cv-00723-CRE (W.D. Pa. filed
May 19, 2020); Lin v. CGIT Systems, Inc., No. 1:20-cv-11051 (D. Mass. filed
June 3, 2020).

 

ABOUT THE AUTHORS

Kerrie R. Heslin of Nukk-Freeman & Cerra P.C. handles employment and labor matters for management and devotes much of her practice to litigating discrimination, retaliation, whistleblower, wage and hour, and benefits issues. She also counsels clients on training, agreements, policies and practices. She can be reached at kheslin@nfclegal.com.

Ryan S. Carlson, also with the firm, represents management in employment litigation, particularly in defending claims of wrongful discharge, discrimination, harassment, retaliation, wage and hour violations, whistleblowing, and restrictive covenants. He can be reached at rcarlson@nfclegal.com.

The firm’s Robin H. Rome defends companies and management in employment and commercial cases, including claims involving discrimination, harassment, retaliation, breach of contract, restrictive covenants and state law violations. She has served as an independent investigator and conducts training sessions and seminars on employment-related issues. She can be reached at rrome@nfclegal.com.

All three attorneys are based in New Jersey. This article reflects the situation at the time it was written based on the rapidly changing nature of the COVID-19 pandemic.

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