COVID-19 Employment Practices Litigation Update 

Lawsuits related to COVID-19 are increasing federally and in every state. More than 2,000 lawsuits related to COVID-19 have been filed in federal and state courts. Below is a summary of COVID-19-related claims that employers are experiencing and ways for employers to help mitigate their exposures.

  1. Whistleblowing/Retaliation: These claims can occur when an employer is accused of retaliating against employees who exercise their protected legal rights or oppose unlawful employer actions. There’s an increased risk of these claims from employees who claim they were disciplined or terminated for complaining about health and/or safety concerns relating to the coronavirus pandemic. Moreover, employees who work in essential businesses are filing claims regarding personal protective equipment (PPE), social distancing, and other safety measures. OSHA reported that they had received hundreds of whistleblower complaints related to the pandemic over the past few months, including claims that employees were disciplined or discharged after reporting unsafe work practices or conditions.
  1. Wrongful Termination: These claims result from an employer’s decision to terminate an employee for an unlawful reason. Despite the turmoil caused by the COVID-19 pandemic, employees maintain their rights and protections against wrongful termination. Employees are protected by federal, state, and local laws and ordinances.
  1. Workplace Health & Safety Issues: These claims can occur when an employer is accused of failing to implement proper measures to limit the spread of COVID-19 in the workplace. These claims can include failure to provide necessary protective equipment, adequate handwashing areas, sufficient sanitizing dispensers, or enforcing social distancing protocols. Additionally, these claims can arise from employers not following local, state, and federal safety guidelines and the CDC and OSHA.
  1. Employment Discrimination/Disability Claims: These claims happen when an employee alleges discrimination related to employment-related decisions. These allegations can include forced leaves of absence, failures to accommodate, and requests for leave due to COVID-19. Employees are protected under the American with Disabilities Act (ADA) and other protected classes of individuals. Claims can also include perceived disability claims.
  1. Work-from-Home / Leave Claims: These claims happen when employees claim to not receive requested time off from work, despite an appropriate need for leave or that the requested leave falls within the Families First Coronavirus Response’s Rights Act and/or Family and Medical Leave Act.
  1. Wage & Hour Issues: These claims happen when an employee claims that an employer altered work arrangements/compensation without adhering to federal, state, and/or local laws.  These claims can include employers’ failure to pay for hours worked before a business closed due to the COVID-19 pandemic. Additionally, employers being accused of unpaid hazard pay, outstanding overtime pay, unpaid sick pay, unpaid time off, unpaid remote work, and unpaid time for mandatory health screenings.
  1. WARN Act: These claims stem from violations of The Worker Adjustment and Retraining Notification Act of 1988 (WARN Act). Under the WARN Act, an employer may be required to provide a 60 days’ notice to workers when laid off for an extended period or when the employer closes its business. Claims can arise from employers failing to provide WARN notifications.
  1. COBRA: These claims involve allegations of failures to provide COBRA notices and/or providing inaccurate COBRA notices. Cases brought under COBRA allege that an employer’s notice caused someone to lose (or almost lose) their health insurance because it lacked the required information or wasn’t written in an easy-to-understand way.

How to Mitigate Exposure 

Employers need to recognize the increased risks of COVID-19-related claims and lawsuits and mitigate these risks whenever possible.

  1. Updated Policies: Make sure your policies relating to harassment, discrimination, retaliation, FMLA, FFCRA, reasonable accommodations, sick leave, and remote work are current. Make sure you comply with all local, state, and federal laws and mandates. For more information, read our article on employee handbook and workplace policy changes. Furthermore, educate your key decision-makers (supervisors, managers, HR professionals) on your policies on handling different situations.
  1. Workplace Complaint Evaluation Process: To help protect against any potential wrongful termination claims, employers need to evaluate any workplace complaints carefully. Employers should maintain records of any claims, the resulting investigations, and any decisions. If terminating or disciplining an employee, employers should document the reasons and supporting documentation. Employers should be ready to show how any employment decision was entirely unrelated to a workplace complaint.

  1. COVID-19 Safety Plan: Communicate a thorough safety plan to all employees. Ensure your plans include what to do if an employee tests positive, protocols if you are doing employee screenings and accommodations. For more information, read our article on resuming regular business operations.
  1. Work with Advisors: Work closely with your insurance and risk management professionals to develop plans unique for your business and needs. Your advisor will keep you updated on Workers’ Compensation updates, safety requirements, local/state/federal rules and requirements, and policy development.
  1. Legal Advice:  Always work with your legal advisors when making employment decisions or issuing notices.

 

RBN Insurance Services is available to help during these uncertain times. Contact RBN for additional COVID-19 resources and guidance.

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