By Braden Campbell

Law360 (September 4, 2020, 11:56 AM EDT ) The pandemic has brought with it a wave of novel employment litigation, including lawsuits accusing businesses of not adequately protecting workers, denying disability accommodations and failing to notify workers before laying them off.

Here, Law360 looks at six coronavirus-related employment suits to watch.

Amazon, McDonald's Workers Say Virus Exposure a Public Nuisance

The coronavirus pandemic represents the most sweeping public health threat in a century, putting workers at risk when their jobs involve face-to-face interaction. These concerns have led to several high-profile lawsuits accusing businesses of failing to protect workers from the virus.

Workers at several Chicago-area McDonald's restaurants filed one of the first such suits in mid-May, accusing corporate-owned locations of forcing them to serve customers and assemble meals in cramped quarters, making them reuse dirty masks and gloves and otherwise exposing them to COVID-19. Weeks later, a group of workers at Amazon's New York City warehouse on Staten Island accused the retail giant of prioritizing productivity over worker safety.

These cases and others filed in recent months turn on a novel application of a so-called public nuisance theory. This common-law theory — notably used in suits against opioid manufacturers — allows plaintiffs to seek remedies against companies that cause public harm. In this case, the workers are seeking court orders to make their employers take certain steps to protect them, such as giving them more time to wash their hands and providing personal protective equipment.

These suits come amid continued inaction by the U.S. Department of Labor's Occupational Safety and Health Administration, said Hugh Baran, a staff attorney with the National Employment Law Project who advocates for low-wage workers. The agency, which is tasked with enforcing federal job safety laws, has issued a "meager handful of citations" and conducted few on-site inspections despite fielding thousands of worker safety complaints.

"These public nuisance lawsuits are really trying to fill a gap where the systems that are in place to protect workers. The agency that is in place to protect workers has just completely abdicated its responsibility," Baran said.

The cases are Palmer et al. v. Amazon.com Inc. et al., case number 1:20-cv-02468, in the U.S. District Court for the Eastern District of New York and Taynarvis Massey et al. v. McDonald's Corp. et al., case number 2020CH04247, in the Circuit Court of Cook County Illinois.

Meatpacking Workers Want OSHA Citation

In another novel safety-related suit, a group of meatpackers at a Maid-Rite Specialty Foods factory in Pennsylvania sued the Department of Labor seeking an OSHA citation after the company allegedly failed to protect them from COVID-19.

The Occupational Safety and Health Act requires employers to protect workers from hazards, but it does not allow workers to sue. Instead, workers must complain to OSHA, which investigates and takes action when it finds violations. But the agency has scarcely used this power so far during the pandemic, much to the chagrin of workers and their advocates.

In their July lawsuit, the Maid-Rite employees cite a rarely used provision of the worker safety act allowing workers to seek court orders making OSHA act when the DOL "arbitrarily or capriciously fails to seek relief." This contrasts with the public nuisance cases, which seek remedies from the court. 

Like those cases, the suit is an example of workers demanding protections while OSHA sits on the sideline, Baran said. It has also shed light on the scope of OSHA's inaction through the agency's disclosures in the suit, he said.

"OSHA decided with no inspection that the failure to require social distancing in a meatpacking plant and failing to provide masks was not an imminent danger," Baran said. "It really highlights why workers need to have more avenues to be able to enforce their health and safety rights."

The case is Jane Does I, II, III et al. v. Eugene Scalia et al., case number 3:20-cv-01260, before the U.S. District Court for the Middle District of Pennsylvania.

Enterprise Workers Challenge COVID-19 Layoffs

The rapid spread of COVID-19 has forced many businesses to shut down and cut ties with millions of workers, potentially exposing the employers to legal liability under the Worker Adjustment and Retraining Notification Act, which requires companies to give workers 60 days' notice before enacting a mass layoff. A pending suit against Enterprise Rent-a-Car is testing how this claim applies to pandemic-related cuts.

In May, longtime Florida employee Elva Benson accused the company of violating the WARN Act by letting her and a proposed class of her colleagues go with zero notice in late April. Benson alleges the company should have known it would need to lay off workers after she and others were furloughed in mid-March.

Enterprise has cited a WARN Act exception shielding businesses from suits over mass layoffs when the need to let workers go is "unforeseeable." The provision is meant to excuse businesses that are forced to let workers go after a sudden shift in fortune. But it's unclear how that applies to an economic shock that began simmering in January before boiling over months later.

"It certainly was unforeseeable in January, February, arguably in March," said Gerald Maatman, a Seyfarth Shaw LLP attorney who represents employers in high-stakes litigation. "The issue of 'I didn't see it coming' … is a factual issue. When do you know and when should you have known it was foreseeable?"

Whether this exception protects a given business may also depend on location, as the pandemic has peaked at different times in different parts of the country, Maatman said. So layoffs may have been foreseeable at varying times for businesses in, say, the rural South versus the Northeast, he said.

The case is Benson v. Enterprise Leasing Co. of Florida, LLC et al., case number 6:20-cv-00891, in the U.S. District Court for the Middle District of Florida.

Airline Exec Sues Under Virus Leave Law

When the pandemic hit the U.S. in March, Congress quickly adopted the first-ever federal paid sick time mandate through the Families First Coronavirus Response Act. The first suit filed under this law followed soon after.

Former Eastern Airlines executive Stephanie Jones sued the company in Pennsylvania federal court in mid-April, alleging she was fired for requesting time off under the FFCRA. The law, which applies to most employers with fewer than 500 workers, entitles workers to two weeks of paid sick time for various reasons tied to the coronavirus, plus another 10 weeks at partial pay if they can't work because their children's schools have closed.

Jones alleges she asked for two hours of paid time off per day to care for her 11-year-old son, whose school had closed. But the company balked at her request and fired her days later in violation of the FFCRA's anti-retaliation provisions, Jones claims.

The suit shows employees will seek to hold businesses accountable if they don't provide leave as required by the FFCRA, Baran said.

"This statute is a lifeline for workers who are struggling to juggle childcare duties and work duties in this pandemic," Baran said.

The case is Jones v. Eastern Airlines LLC et al., case number 2:20-cv-01927, in the U.S. District Court for the Eastern District of Pennsylvania.

A Right to Remote Work?

The sudden shift to remote work during the pandemic has upended traditional notions of employment, potentially giving workers with disabilities new ammunition to back up telework requests. A suit currently playing out in Massachusetts federal court is testing just how far the pandemic has expanded that right.

In June, engineer Yiyu Lin accused CGIT Systems Inc. of disability discrimination under Massachusetts law by firing him after he requested to work remotely due to coronavirus concerns. Like the federal Americans with Disabilities Act, Massachusetts law gives workers a right to request "reasonable accommodations" that allow them to do their jobs. In his case, Lin alleged it was risky for him to report to work because he has high blood pressure and lives with his elderly mother, who has various medical conditions that place her at a higher risk of becoming severely ill from COVID-19.

Historically, courts have been skeptical of requests for remote work as a reasonable accommodation, said William Goren, an attorney and consultant who focuses on ADA compliance. Under the law, workers must show they can perform the "essential functions" of their job with or without an accommodation, and courts have agreed with arguments that reporting to the office is one such function.

But the pandemic may have made that argument a harder sell.

"You're going to see much more of this, because now everybody has gone to remote work, and we know remote work works," Goren said.

The case is Lin v. CGIT Systems Inc., case number 1:20-cv-11051, in U.S. District Court for the District of Massachusetts.

--Editing by Alanna Weissman and Nicole Bleier.

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