Wave of COVID-19 Employment Litigation on the Horizon

As employers continue to confront the unique challenges presented by the COVID-19 pandemic, the first wave of COVID-19 related lawsuits have been filed against employers. This is likely just the beginning. These lawsuits range from safety violations, to wage and hour claims, to leave law violations, and everything in between. It is important that employers take proactive measures now to mitigate their future litigation risk. However, because many of these fact patterns and laws are new (and ever-changing), there’s little guidance and case law to rely on as businesses make these critical decisions. Ultimately, it is important to rely on tried-and-true best practices implemented prior to COVID-19 and to work closely with your employment attorney to put the company in the best defensive posture before making any significant employment decisions.

Claims Arising out of the Family First Coronavirus Response Act (FFCRA)

The new federal law passed in response to the pandemic (our original blog about it can be found here) created new obligations for employers with fewer than 500 employees. Complicating matters, the Department of Labor continues to revise its rules, regulations, and FAQs (the latest rules went into effect on September 16, 2020) as a result of litigation challenging the regulations as overly broad and inconsistent with the law passed by Congress.

Many of these lawsuits allege that an employer failed to provide job-protected leave under FFCRA when it knew or had reason to know an employee was entitled to such leave. For example, a recent lawsuit in Illinois claims that an employer terminated an employee after he informed his supervisor he was leaving work because he had COVID-19 related symptoms. Shortly after leaving, he was hospitalized. The complaint alleges his employer terminated him and cut off his health benefits five days later.

Key Takeaway: It is important for employers to draft and implement new FFCRA policies and practices, and to train management to handle these types of requests. Once these policies are in place, they provide a reliable roadmap to avoid any missteps resulting from the failure to provide the required leave.

Wage and Hour Litigation

As remote work has become the norm, it has thrown a wrench in an employer’s ability to determine the start and end times of the workday for non-exempt employees who are entitled to overtime. Generally, employers are on the hook for all hours worked by an employee, including work outside of the employee’s shift. Employees working from home often begin to read emails and receive calls and texts before or after their shift, sometimes at odd hours. These activities are likely compensable and should be paid.

Businesses are beginning to see wage claims from disgruntled employees who have lost their jobs alleging they performed work at home outside of their normal shift for which they were not paid. While it is unlikely that a current employee would make such a claim, plaintiffs’ attorneys will leverage this employee-friendly climate and attempt to get a quick settlement from employers.

Key Takeaway: Employers should consider requiring all employees who are working remotely to enter into a telecommuting agreement that clearly lays out their expectations regarding (1) hours worked, (2) requesting overtime, (3) requesting to work outside of their normal schedule, (4) recording all hours worked even if not pre-approved, and (5) making it clear that any violation of this policy will result in discipline.

Workplace Safety

As expected, employees and their families have brought claims alleging that their employers failed to provide adequate safety measures, resulting in COVID-19 infections. Even though some of these claims may be governed by worker’s compensation laws, family members are suing employers directly in state court alleging the employer was negligent in failing to meet the employer’s duty of care and safety.

One such example is a claim filed in Illinois in August by a deceased woman’s estate. The complaint alleges that her husband’s employer (a meat packing company) failed to meet its standard of care of providing adequate safety measures, resulting in her husband contracting COVID-19 and thereafter infected his wife. The employees’ wife died a month later. Specifically, the complaint alleges that the employer failed to implement local and federal guidelines to mitigate employees’ exposure to COVID-19, did not require employees to wear appropriate PPE, and did not notify employees when an employee tested positive for COVID-19.

Key Takeaway: Employers need to proactively implement a return-to-work policy involving appropriate safety measures to help mitigate any exposure to COVID-19.

If you have any questions regarding labor or employment law, please contact Walker R. Lawrence, Partner at Levin Ginsburg, at wlawrence@lgattorneys.com or (312) 368-0100 or any of Levin Ginsburg’s labor and employment attorneys.