By Melissa Camire, Richard Meneghello and Kristen Nesbit

Law360 (September 24, 2020, 12:47 PM EDT )

Melissa Camire

Richard Meneghello

Kristen Nesbit

This article summarizes the top three types of COVID-19 workplace cases that employees have filed against employers to date, along with an analysis of the frequency of these types of lawsuits to identify current litigation trends. The data we rely upon for this article comes directly from our firm's COVID-19 Employment Litigation Tracker.[1]

This article also provides guidance and best practices for avoiding workplace litigation related to COVID-19 issues, and offers strategies for defending such lawsuits should employees file them.

Specifically, among other things, this article addresses the following:

• Overall litigation trends in workplace COVID-19 matters;
• Remote work/employee leave issues;
• Discrimination claims; and
• Retaliation/whistleblower claims.

Overall Litigation Trends in Workplace COVID-19 Matters

Through July 31, employees and former employees had filed at least 436 workplace-related lawsuits against employers relating to COVID-19.

We compiled this data from the our COVID-19 employment litigation tracker, which collects information on traditional employee versus employer cases at both the federal and state level that resulted directly from the COVID-19 pandemic. Because of the inherent limitations in a national data collection process, the information contained herein should be considered a comprehensive, but not exhaustive, dataset.

There are two major trends that become apparent upon an initial examination of the data. The first involves the location of the lawsuits, while the second involves the type of lawsuits plaintiffs are filing.

State-by-State Summary of Workplace COVID-19 Matters

First, the states that generally see the most typical workplace-related litigation are largely seeing the most COVID-19-related workplace litigation, with some notable exceptions. Through July 31, plaintiffs have filed the highest number of federal and state lawsuits in the following states:

• California: 80 cases
• New Jersey: 48 cases
• Florida: 46 cases
• Texas: 34 cases
• New York: 30 cases
• Ohio: 19 cases
• Pennsylvania: 19 cases
• Illinois: 18 cases
• Kentucky: 18 cases
• Michigan: 15 cases
• Washington: 11 cases

Types of Workplace COVID-19 Cases

Second, the 10 types of cases employees and former employees are filing can be sorted into three categories commensurate with the number of cases and frequency of filing: (1) highest number of claims, (2) moderate number of claims, and (3) lowest number of claims. This article discusses the top three types of cases with the highest number of claims.[2]

Highest Number of Claims

The three types of claims that employers have seen the most often when it comes to COVID-19 workplace claims involve remote work and employee leave issues, standard employment discrimination allegations, and retaliation/whistleblower claims.

There have been 112 cases involving remote work and employee leave issues, 97 cases involving standard employment discrimination allegations, and 64 cases involving retaliation/whistleblower claims.

While some are predicated on federal or state statutes that most employers are already well familiar with, many are also filed under the authority of an entirely new statutory scheme.

Moderate Number of Claims

The next category of claims has not been as prevalent as the highest number category, but still presents significant challenges for employers. This category includes wage and hour matters, unsafe workplace allegations, and Coronavirus Aid, Relief and Economic Security Act claims, which still carry with them potentially high levels of liability.

There have been 32 cases involving wage and hour matters, 31 cases involving unsafe workplace allegations, and 19 cases involving CARES Act claims.

Lowest Number of Claims

Finally, although employers have seen the lowest number of claims concerning wrongful death, breach of contract, noncompete and trade secrets, and the Worker Adjustment and Retraining Notification Act, these are some of the more significant types of claims.

There have been 14 cases involving wrongful death claims, 11 cases involving breach of contract issues, 10 cases involving noncompete and trade secrets claims, and seven WARN Act cases.

Wrongful death claims obviously involve a workplace-related fatality, which is a traumatic event for any organization. Noncompete and trade secrets cases might involve the loss of critical information that could be very harmful to operations.

And WARN Act cases often involve a large-scale reduction in force or even closure of business operations, either of which could have a devastating impact on a business. It would not be surprising to see a significant rise in WARN Act and/or state mini-WARN Act cases over the next several months as group terminations continue to rise.

Remote Work/Employee Leave Cases

Far and away, the type of COVID-19 workplace claim that plaintiffs have filed the most often relates to employee leave and remote work requests. Faced with ramping up compliance to deal with an entirely new statutory paid leave structure, employers can easily be caught flat-footed and on the receiving end of a lawsuit.

FFCRA Lawsuits

One of the very first COVID-19 workplace lawsuits filed at the outset of the pandemic is quite emblematic of the types of employee leave claims that have been filed across the country.

Jones v. Eastern Airlines LLC,[3] filed in the U.S. District Court for the Eastern District of Pennsylvania on April 16, provides some insight into what employers can expect from what will very likely be part of the new normal in employment litigation. The main allegation in these claims: that employers have wrongfully denied employees Families First Coronavirus Response Act paid leave benefits or terminated them in retaliation for requesting such benefits.

Understanding FFCRA Interference and Retaliation Lawsuits

A review of the claims in Jones v. Eastern Airlines, can help you forecast the kinds of lawsuits that employees may soon file and either help you proactively avoid them from being filed or put you in the best position to defend any that land on your desk. Here are four things you need to know:

1. These claims can come swiftly. As opposed to some of the more common federal employment law claims, FFCRA claims do not require aggrieved plaintiffs to exhaust administrative remedies before filing a private lawsuit. Because there is no required administrative process, companies might find themselves in federal court within days of an adverse employment action that can be connected to an FFCRA benefit request.

2. Smaller employers are not immune. Under the Family and Medical Leave Act, only employers who employ 50 or more employees are subject to lawsuits for interference or retaliation involving extended family medical leave. The FFCRA, however, applies to all private employers with fewer than 500 employees. Small employers who are unaccustomed to dealing with FMLA leave should familiarize themselves with their obligations under the FFCRA or risk legal claims.

3. Available remedies will make FFCRA claims costly. As enacted, the FFCRA allows employees pursuing a private action against their employers to seek remedies allowed under the Fair Labor Standards Act. This means employees can seek to recover liquidated damages — an amount equal to what is owed in lost wages — for willful violations and attorney fees.

4. Individual managers may be sued under the FFCRA. In addition to naming her former employer as a defendant, the plaintiff in Jones named two individual managers as well: The company's human resources consultant and the chief executive officer.

Because the FFCRA's Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act adopt the enforcement mechanisms of the FMLA and the FLSA, managers and supervisors may be sued in their individual capacity for violations of the FFCRA. Indeed, both the FMLA and the FLSA broadly construe the term "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."[4]

For this reason, managers should exercise caution when it comes to FFCRA compliance. Employers should ensure that all managers and supervisors are aware of the FFCRA, what benefits it provides to employees, and that HR should be notified immediately if a manger learns that an employee may need FFCRA leave.

An Emerging Trend – Employees With Preexisting Conditions

Other lawsuits filed across the country have begun to show a litigation trend: plaintiff employees with preexisting health care conditions. In all of these cases, the plaintiffs alleged that they needed time off from work due to a heightened risk of COVID-19-related complications arising from preexisting conditions. Likewise, in all cases, the employees claimed that they were terminated once they inquired about their options for leave.

Best Practices to Consider

To the extent that the allegations in the aforementioned cases may be similar to those in future FFCRA complaints, the following best practices could help you defend any such case you might happen to face.

Designate an FFCRA expert.

The FFCRA paid leave benefits and the guidelines for administering them are new. Depending on the size of your organization, it will be helpful to have a certain individual or group to review and respond to FFCRA questions and requests for benefits. The key is to be consistent and ensure that proper review is conducted in all situations.

Train your management team.

While having one person or group review all FFCRA situations is recommended, every member of a company's management team needs to know enough about the FFCRA, and other state and local leave obligations, to make sure that their direct reports get the help they need and that they do not take actions or make statements that could be problematic.

Understand accommodation obligations.

While more and more employees are returning physically to work, inquiries to continue to work from home should be treated as a possible request for a reasonable accommodation under the Americans with Disabilities Act.

Manage communications.

In any situation in which an employee is making repeated contacts to multiple members of the company's management team, the best way to ensure an effective and helpful result is to have one person designated to follow up and address the employee's questions or issues. Having fewer people involved in direct communications helps eliminate misunderstandings and keeps communications focused on the most relevant information.

Ensure sufficient documentation.

It is also important to document all discussions regarding requests for leave or other accommodations. Having a paper trail that can show that the company responded to requests and provided relevant information can be extremely helpful in defending claims where the plaintiff may allege that their requests were ignored. Likewise, the company should document the rationale behind decisions to deny a leave or accommodation request, or to terminate.

Consider written termination.

Even in situations in which there is no requirement to provide written notice of termination, such documentation is often helpful where litigation is likely. This is especially true given that litigation under the FFCRA is so novel and an employer's ability to show it made reasonable, good faith efforts to comply with the act will be critical in responding to retaliation and interference claims.

Understand your rights.

Just because an employee asks about the FMLA does not mean the company cannot terminate him or her for another reason or include him or her in a layoff. However, the company must be aware that its ability to explain why it terminated the employee is essential. Once an employee files a lawsuit or charge of discrimination, the company is obligated to respond with legitimate, nondiscriminatory reasons for its employment decisions.

Discrimination Cases

Despite the pandemic and the new normal, employers have not been immune from the typical workplace discrimination claims filed under standard federal and state statutes. Now, however, employers must grapple with new twists on these established types of claims. Two of the more interesting developments involve pregnancy discrimination claims and disability discrimination claims.

An Emerging Trend – Lawsuits by Pregnant Employees

COVID-19 presents a specific, elevated immune and respiratory risk to mother and child, and recent lawsuits filed across the country are showing a trend of litigation filed by pregnant employees. In all of these cases, the plaintiffs allegedly requested accommodations or a furlough due to a heightened risk of COVID-19-related complications due to their pregnancies.

Also, in all cases, the employees claim that their employers eventually terminated them after they requested options for leave. Given the frequency of these types of cases, employers should be taking steps to minimize the risk of pregnancy discrimination claims in their workplace.

What Should Employers Do to Avoid Similar Claims?

For many reasons, employers should be diligent in quickly responding to employees requesting time off due to a COVID-19-related issue, or otherwise requesting an accommodation due to COVID-19 or another underlying health condition, such as pregnancy.

For example, while employees are beginning to physically return to the workplace, requests to work from home should be treated as a possible request for a reasonable accommodation. All managers should know to direct such requests to the appropriate person in their company and avoid any shorthanded comments that may instigate a claim of discrimination. Having an individual within each business to whom requests can be directed can make sure that they are responded to in a timely and consistent manner.

Companies should also document any and all discussions regarding requests for leave or other accommodations. A paper trail can show that such requests were responded to and it can be extremely helpful in defending claims where the employee may allege that the company ignored or avoided their requests. Employers should also document the reasoning behind any decisions to terminate.

Remember, just because an employee asks about the FMLA does not mean that the employer cannot legitimately terminate him or her for another reason or include him or her in a furlough, so long as the employment decision is unrelated to the request for leave. However, be aware that the company's own capability to explain why it terminated the employee is crucial.

Once a charge of discrimination is filed, the employer is obligated to respond with legitimate, nondiscriminatory reasons for its employment decisions. Maintaining clear and detailed paperwork prior to a termination will at least place the employer in the best position to defend its decision if such a claim arises after a termination event.

Is COVID-19 a Disability Under Discrimination Law?

With an increasing number of employees being diagnosed with COVID-19 and requiring a leave of absence to recover from the virus, the question arises whether having COVID-19 renders an employee "disabled" as defined under the ADA or other state and local anti-discrimination laws. The next wave of workplace lawsuits may answer this question.

In Worthy v. Wellington Estates LLC,[5] the New Jersey Superior Court answered this question in the affirmative and determined that an employee who was diagnosed with COVID-19 is disabled under the New Jersey Law Against Discrimination.

Is COVID-19 a Disability?

COVID-19 is a virus that causes a range of mild symptoms to severe illness in those who are infected.[6] Although COVID-19 can be deadly in certain cases, individuals who contract the virus often experience symptoms for a limited period and, once the symptoms dissipate, no longer test positive for the virus.

The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities. The U.S. Equal Employment Opportunity Commission has not yet opined on whether COVID-19 is a disability under the ADA. During a March 27 webinar, the agency declined to answer the question of whether COVID-19 constitutes a disability under the ADA, stating that it is unclear whether the virus is or could be a disability given that it is a new virus that medical experts are still learning about.[7]

Other jurisdictions with more expansive disability protections have taken a more definitive stance. For example, the New York City Commission on Human Rights has stated that it "considers actual or perceived infection with COVID-19 to be protected as a disability under the New York City Human Rights Law." Accordingly, employers in New York City cannot harass or discriminate against an employee based on their COVID-19 infection status, and employees with the virus may be entitled to reasonable accommodations in the workplace.

With respect to the Worthy lawsuit, the New Jersey Law Against Discrimination defines a disability as a

physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness ... resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.[8]

It specifically includes AIDS or HIV infection in the definition.

While courts often interpret the New Jersey LAD broadly, it remains unclear whether COVID-19 meets the statute's definition of a disability. Only if COVID-19 falls under the definition of a disability can an employee who contracted the virus have a viable discrimination claim under the LAD.

Other Protections for Employees Who Take Time Off Because They Have COVID-19

Regardless of disability status, job protections may exist to the extent that the infected employee took time off from work. For example, the Emergency Paid Sick Leave Act under the federal FFCRA provides eligible employees with up to 80 hours paid sick leave for COVID-19-related reasons. Many states and localities have also passed leave laws for those impacted by COVID-19.

New Jersey, for instance, enacted a new law that provides job protection for time taken off from work in connection with infectious disease, such as COVID-19, during the public health emergency and state of emergency declared by the governor in Executive Order 103.[9]

Specifically, the law prohibits employers from terminating or refusing to reinstate an employee if the employee requests or takes time off from work based on a recommendation from a medical professional because the employee has, or is likely to have, an infectious disease that may infect others in the workplace. Additionally, job-protected leave may also be available to employees infected with COVID-19 under the New Jersey Earned Sick Leave Law.

What Should Employers Do?

As different jurisdictions will have a different take on whether COVID-19 constitutes a disability, you must review any state and local guidance issued in your area to understand whether government agencies and/or the courts are likely to deem COVID-19 infection a disability under the law.

In New Jersey, the state at issue in Worthy's lawsuit, if an employee provides medical documentation to support a COVID-19-related leave of absence, the company must provide leave for the period recommended by the employee's health care provider. Importantly, once the employee is cleared to return to work and is no longer at risk of infecting others with the virus, the company should permit the employee to return to work without any changes in the terms and conditions of employment.

To the extent the company is considering terminating an employee who is on, or has recently returned from, a COVID-19-related absence, the company cannot base its decision in whole or in part on the fact that the employee was infected with COVID-19 or took a leave of absence because they were infected.

Retaliation/Whistleblower Cases

Retaliation claims are often the most prevalent type of charge filed against employers in EEOC proceedings, so the fact that there have been so many of them filed against employers should not be surprising. A number of them, however, have been filed against health care employers given the unique role this industry is playing in the current crisis.

Whistleblower Cases Can Teach Health Care Employers How to Proactively Manage COVID-19 Risks

Because the COVID-19 pandemic has increased the focus on health and safety issues, it is now more likely that a terminated employee had some role in actively voicing their opinion about health and safety compliance. As a result, it may now be easier for them to claim they were a whistleblower.

In this context, the best defense is a good offense: Health care employers should already be taking precautions to address the whistleblower's complaints and be able to document this to defend against the claims.

Steps to Proactively Address the Risks

To minimize the risk of a whistleblower lawsuit — and to increase the chances of successfully defending such a claim — employers should take the following proactive steps.

First, health care employers should take a strong and vocal stance in communicating their commitment in following all applicable federal, state and local guidelines relating to the health and safety of employees and patients.

Second, the company should actively engage with employees who raise any questions about health and safety matters.

Finally, the company should swiftly and directly confront any employees who violate its health and safety policies and practices.

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Melissa Camire is a partner at Fisher Phillips.

Richard R. Meneghello is a partner and senior director of content at the firm.

Kristen Nesbit is a partner at the firm.

This article is excerpted from Practical Guidance, a comprehensive practice resource that includes practice notes, checklists, and model annotated forms drafted by experienced attorneys to help lawyers effectively and efficiently complete their daily tasks. For more information on Practical Guidance or to sign up for a free trial, please click here.

Law360 and Practical Guidance are both owned by LexisNexis Legal & Professional, a RELX Group company. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.fisherphillips.com/covid-19-litigation.

[2] The unabridged version of this practice note addresses the following additional topics: Wage and Hour Matters (Moderate Number of Claims – 32 Cases); Unsafe Workplace Allegations (Moderate Number of Claims – 31 Cases); CARES Act Claims (Lowest Number of Claims – 19 Cases); Wrongful Death Claims (Lowest Number of Claims – 14 Cases); Breach of Contract Allegations (Lowest Number of Claims – 11 Cases); Non-competition/Trade Secret Claims (Lowest Number of Claims – 10 Cases); WARN Act Matters (Lowest Number of Claims – 7 Cases).

[3] No. 2:20-cv-01927 (E.D. Pa. April 16, 2020).

[4] 29 U.S.C. § 2611(4)(A)(ii).

[5] No. OCN-L-1409-20 (Superior Court of New Jersey, Ocean County).

[6] See CDC Frequently Asked Questions.

[7] See Ask the EEOC.

[8] N.J.S.A. 10:5-5-q.

[9] NJ Assembly Bill 3848.

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