COVID-19-related litigation trends
Q
I heard there is going to be a wave of COVID-19 employment lawsuits. What does this really mean and what can businesses do to minimize future claims?
A
COVID-19 presents a variety of new challenges to employers, including employment-related challenges. The virus — and our response to it — has generated numerous new legal obligations with little guidance. In addition to a number of new laws, employers are also faced with the unprecedented task of applying established laws to new scenarios that are specific to the COVID-19 pandemic. In these uncertain times, employers can minimize risk by being flexible with employees, applying existing law to new situations, and using common sense in crafting solutions to complex situations.
One common misconception with “COVID-19 litigation” is that the rise in litigation is solely attributable to the new federal, state and local laws enacted during the COVID-19 pandemic. The reality is that most COVID19-related litigation to date deals with the application of pre-existing law to new and unique situations. For example, some of the top emerging COVID-19-related litigation matters are based on typical claims such as unlawful discrimination, failure to reasonably accommodate disabilities, retaliation, and wage and hour violations. Rather than providing the legal basis for the claim, COVID-19 often creates the factual backdrop that leads to employers’ alleged violation of existing laws.
For example, in one case a 70-year-old employee alleged that he was denied a work-from-home accommodation that he requested due to his medical condition and age, which he asserted presented an additional risk of complications from COVID-19. In another case, a former employee who was part of a large furlough related to COVID-19 filed a lawsuit against his employer for age discrimination. In that case, the former employee alleged that he performed better than his younger co-workers and had more experience than them, but the employer nonetheless re-hired the younger workers and not him. These examples share some common themes. Each case alleged violations of existing laws preventing discrimination and retaliation, not a violation of a new law.
When responding to an employee’s request for accommodation of a COVID-19 related disability, employers should engage in the interactive process with the employee and explore flexible and practical accommodation options, just as an employer would with an accommodation request that is unrelated to COVID-19. When considering reductions in force because of economic reasons, employers should document and be able to articulate their nondiscriminatory and objective reasons for selecting individuals for layoff and for rehire when bringing employees back. Reasons such as business needs, skill set, performance, or seniority are common criteria used to determine which employees are necessary to operate the business with fewer employees.
The COVID-19 pandemic has also created some wage and hour landmines that employers must navigate. Remote work arrangements must be clearly defined and employers should set expectations in writing related to timekeeping, meal and rest periods, and other work rules to ensure employees are properly recording their work hours and working only when scheduled.
A number of employment-related lawsuits have been filed arising out of COVID-19 related issues. This number will increase, and new suits will continue to be filed even after the pandemic itself has ended. Employers must ensure they are following California employment and wage and hour laws to minimize legal risk.