A new analysis finds that more than 1,000 workplace lawsuits in relation to Covid-19 were filed in 2020 alone, and experts suggest that the new year and continued economic stress associated with the global pandemic will bring even more.
According to the report by the law firm Seyfarth Shaw, 1,005 lawsuits were filed last year, with wrongful termination leading the way with a whopping 690 cases. This figure is more than three times the next runner up, safety retaliation, with 190 claims, in terms of volume. Rounding out the top five were Families First Coronavirus Response Act (FFCRA) leave violations (144), wage and hour disputes (113) and disability discrimination (95). By industry, the law firm notes that health care employees accounted for the bulk of the cases, with 198 lawsuits, followed by business services at 128 and manufacturing at 99.
In the first half of 2020, the law firm Fisher Phillips reported that 283 Covid-19 workplace lawsuits had been filed. At the time, the US Equal Employment Opportunity Commission (EEOC) urged employers to be sensitive to the potential for discrimination lawsuits and be sure that any pandemic response measures were being implemented fairly across the board to stave off lawsuits. However, the expansion of the Family and Medical Leave Act (FMLA) to include paid sick leave for employees led to a new wave of lawsuits filed among employees who felt that they had been falsely denied leave or terminated for taking time off.
Looking ahead to the new year and with the virus remaining at high levels in much of the United States, Seyfarth warned that “we anticipate that the tide of workplace class action litigation will continue to rise in several key areas such as discrimination and workplace bias, wage & hour, as well as on the health & safety front.” The law firm further warned that “employers are apt to see these workplace class actions expand and morph as businesses restart operations in 2021 in the wake of COVID-19, particularly as courts roll out a patchwork quilt of rulings.” In particular, law firms have drawn attention to the spate of state and federal mandates related to the coronavirus response and how difficult it can be for companies to stay apprised of these new rules, which can change by the week and are often rolled out with little or any fanfare. The experts also warn that an additional anticipated area for legal woes lies in employers’ decisions on vaccine recommendations or requirements.
While this remains somewhat unchartered territory, many of the same rules we know and love when it comes to avoiding workplace lawsuits will still hold up. In particular, we here at Abel HR recommend that you:
Keep up to date:
While we recognize that the rules are constantly changing and evolving, you will benefit from staying up to date with federal, state, and local laws as it pertains to the pandemic response. We recommend signing up for the Centers for Disease Control and Prevention (CD) updates, as well as with your state health department for more location-specific data and recommendations. If a significant change comes down the pike and you feel that you must make a change to your operations, consider running it by your legal department to determine the best course forward. Of course, if you are an Abel HR member, we will keep our ear to the ground for significant changes and are also always available as a sounding board should you have questions or require additional guidance.
Keep it equal:
If you are planning on making a change to your company policy or the way that you do business, be sure that the roll out is equal and fair. For example, you may not require that your whole company receive the Covid-19 vaccine, but you may want your traveling sales folks to so that they can get back on the road. This would only be fair if you required all marketing team members to get the vaccine, or enter the interactive accommodation process, as opposed to just cherry picking your top sellers to get it and leaving your lower earners out. Similarly, leave requests related to Corona need to be uniformly allowed for all staff, not just those that interact with clients or have a customer-facing role.
Keep it in writing:
If you make a significant change to your company policy or operations, you must communicate it to your staff! While a verbal announcement will usually do the trick, it is safer, from a legal perspective, to put it in writing and require your staff to not only read it but also acknowledge the receipt of the information. In this way, you can ward off any lawsuits from folks who fall out of compliance with your rules and then suggest that they were never informed of the revised policy.
Keep it documented:
Many of the termination claims stemming from the global pandemic and resultant shut down were made based on business preservation decisions. However, wrongful termination lawsuits have come up from folks who claim they were let go after bringing up safety concerns, for taking medical leave, or even for obeying a shelter in place order for non-essential workers. Again, you’ll want to make sure that any and all policies related to employee expectations during the pandemic are carefully outlined. Further, if you are letting folks go for a performance issue, as always, you’ll want to make sure that you have appropriately documented their history of poor performance or insubordination. If you are making cuts to your company to keep it afloat, first carefully outline the criteria for selecting who is subject to a furlough or layoff, then analyze whether it disproportionately impacts any folks in a protected class, such as based on age, gender or race. If you do find that it is discriminatory to any one group, go back to the drawing board and determine how your criteria can be adjusted to make the layoffs less heavy in these protected groups.
