By Lariza Hebert

Law360 (May 18, 2020, 3:50 PM EDT )

Lariza Hebert

Among the myriad challenges emerging from the COVID-19 crisis, plaintiffs lawyers have already begun filing lawsuits against employers, asserting a variety of claims. Based upon this activity, some trends are taking shape, which also gives employers some best practices for safeguarding their interests moving forward.

1. FFCRA Claims

The Families First Coronavirus Response Act, passed only two months ago, has provided over 60 million workers the right to bring claims over unpaid leave in federal court. The FFCRA was aimed to help those impacted by the COVID-19 pandemic. Employers with less than 500 employees are subject to the FFCRA provisions, which went into effect on April 1. Enforcement began on April 18.

Only three weeks after the FFCRA went into effect, the first FFCRA lawsuit was filed. In Jones v. Eastern Airlines LLC, an airline's former director of revenue management filed suit against her former employer and two executives in the U.S. District Court for the Eastern District of Pennsylvania alleging that she was unlawfully fired for requesting time off to care for her child under the FFCRA.

While there is some question regarding the viability of the plaintiff's claim since her termination was effective before April 1, and these are simply unproven allegations at this point, the Jones case illustrates an alleged retaliatory scenario that employers are likely to continue to see.

Since the Jones filing, there has been a wave of FFCRA lawsuits. These lawsuits generally allege that employees were unlawfully denied benefits, were terminated in retaliation for requesting leave, or the employer interfered with an employee's FFCRA-entitled leave.

Many employers are surprised that FFCRA lawsuits are being filed at this rocket pace. This is because unlike most discrimination claims, there is no exhaustion-of-remedies requirement with an FFCRA claim. In other words, an employee does not need to first file a charge of discrimination with a governmental agency, such as the U.S. Equal Employment Opportunity Commission, prior to filing suit — unless the plaintiff asserts additional claims that require exhaustion.

Importantly, FFCRA claims can be costly since the remedies are the same as those allowed under the Fair Labor Standards Act and the Family and Medical Leave Act, meaning successful plaintiffs can recover actual damages, liquidated damages and attorney fees. Moreover, unlike most discrimination claims, individual managers can be sued personally under the FFCRA because the FFCRA adopts the broad definition of employer under the FLSA which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."

Best Practices

Designate an internal FFCRA expert or point person to oversee compliance; train managers on how to deal with leave requests and to forward FFCRA inquiries/requests to the designated person(s); make FFCRA benefit decisions fairly and consistently, and maintain supporting documentation for each leave request and denial.

2. ADA and Traditional FMLA Claims

After dealing with employees with a COVID-19 diagnosis or COVID-19 symptoms, or employees who are caring for individuals with a COVID-19 diagnosis or symptoms, some employers are undoubtedly going to face claims pursuant to the Americans with Disabilities Act and the FMLA.

The ADA applies to any employer with 15 or more employees. Under the ADA, COVID-19 is not necessarily a covered disability because the coronavirus is transitory in nature.

However, there is more than one way for an employer to be liable for discrimination under the ADA: discrimination because of a disability; discrimination because of a record or history of a disability; and perhaps most important in this instance, regarding (or believing) an individual is disabled. Employers can also be liable under the ADA for failing to provide a reasonable accommodation to an employee with a disability.

In most jurisdictions, an employer can be liable for discriminating against an employee by regarding them as disabled, even if that employee does not actually have an ADA disability. Likewise, certain individuals during this pandemic are at a higher risk for severe illness because they have or have had other impairments. These other impairments may indeed constitute ADA disabilities, which is where the record-of-disability analysis may be important, as well as a possible duty to consider reasonable accommodation of a disabled employee's non-COVID-19 impairment.

Employers have an obligation under the ADA to at least engage in the interactive process and possibly to provide a reasonable accommodation when an employee requests an accommodation. Many employers may be overlooking this obligation, for instance, by thinking that because COVID-19 itself is not an ADA disability, employers are under no obligation to provide an accommodation, or by simply denying accommodation requests from essential workers.

However, employers must remember that each request needs to be analyzed independently. The ADA leaves no room for blanket assumptions or denials based on COVID-19 or any other condition. Employers must also remember that in most instances, a leave of absence is considered to be a reasonable accommodation under the ADA. As most employers who are subject to the FFCRA (those with under 500 employees) are also subject to the ADA, both laws need to be considered when evaluating possible accommodations.

Employers with 50 or more employees within a 75-mile radius are also subject to traditional the FMLA, which the FFCRA temporarily amended. Under the current circumstances, it would be easy to overlook obligations under the traditional FMLA, especially for employers who are covered by both the FFCRA and traditional FMLA. Employers must remember that FFCRA and FMLA obligations can or will overlap.

Employers that are not covered by the FFCRA, but are covered by the traditional FMLA, still need to be aware of potential FFCRA litigation for alleged denial of benefits. For example, in Robtoy v. The Kroger Co., filed in April in the U.S. District Court for the Northern District of Indiana, the plaintiff alleged her former employer violated the FMLA and FFCRA after she was denied paid leave under Kroger's policy (leave taken because of COVID-19 symptoms) and later terminated.

If the plaintiff can show that she satisfies the 12-month tenure and 1,250-hours-worked requirements, she may be able to state a viable claim, if her self-isolation was due to a serious health condition. The plaintiff's FFCRA claim is shakier, however, as Kroger has over 500 employers.

However, the plaintiff seeks to bypass this by arguing that Kroger voluntarily adopted a policy mirroring the 14 days of paid sick leave provided under the FFCRA. Again, these are simply allegations, and not proven, but the Robtoy case illustrates another example of claims that employers can anticipate.

Best Practices

Consistently administer all employer-provided leave pursuant to the employer's written policies. Employers should not take too much comfort in the fact that COVID-19 is transitory; rather, be vigilant to ensure compliance with both the ADA and FMLA when it comes to COVID-19 diagnosis, symptoms and requests for leave.

3. Discrimination Claims

Title VII of the Civil Rights Act is still applicable to employers with over 15 employees. During this pandemic, many employers are handling requests for leave, whether under the FFCRA, non-FMLA medical leave or other personal leave at an unprecedented rate.

Employers can inevitably expect allegations regarding the unfair administration or denial of leave. For example, say Employee A asks to take leave based on the need to care for a child, and the employer grants Employee A this leave. Then, Employee B asks for leave for the same reason, but in the instance of Employee B's leave, the employer requires more supporting information than it did from Employee A or denies the request. This inconsistency clearly sets up a potential discrimination claim.

Best Practices

Ensure that you are administering benefits, including FFCRA and employer-provided leave benefits, equitably and consistently. When it comes to employment actions, including separations, ensure the reason for the action is documented, approved centrally and communicated clearly to the employee. Consider putting the reason for the employer's decision in writing, if the employee has requested time off or other benefits and above all, ensure that the documentation is clear and consistent.

4. Wage and Hour Claims

Employers should expect an explosion in wage and hour claims, which is already a familiar area of employment litigation. While such litigation often affects hourly nonexempt workers, the COVID-19 crisis may lead to more litigation by exempt workers, as well.

In response to the pandemic, many employers furloughed employees. One common practice for exempt employees has been to alternate schedules, having them work one week on and one week off, or a similar pattern.

However, an exempt employee could be called upon to work or unilaterally decide to perform some work during the off week. Under the Fair Labor Standards Act, even if an exempt employee works just one day during a workweek, however, that employee would typically be entitled to a full week of pay.

If employers fail to closely track exempt employees' time worked during weeks off, it could be responsible for paying the exempt employees' full salaries for those weeks. Thus, it is vital to ensure that arrangements for week's off during a furlough or modified schedule period are carefully tracked and complied with.

Another way some employers have adjusted to the pandemic has been to expand exempt employees' job duties to cover more responsibilities. When an employee's exemption is based on his or her duties (e.g., outside sales or even executive), employers must ensure that that employee's modified duties still meet the criteria for exempt status.

In addition to an uptick in FLSA litigation concerning exempt employees, more litigation concerning nonexempt employees also appears to be likely. For example, as some employers have instituted hazard pay or other incremental pay increases to reward workers during the pandemic, they may have failed to consider these pay increases properly in calculating overtime pay. Whether characterized as hazard pay, bonuses or something else, additional pay for nonexempt employees must be properly included in the calculation of the overtime premium when those employees work over 40 hours during a week.

FSLA lawsuits across the country have already been filed. One recent case resulted from business closures due to the pandemic. In Olsen v. Ratner Cos. LC, a class action lawsuit filed in April in the U.S. District Court for the District of New Jersey, hair stylists alleged that Hair Cuttery (a chain of hair salons) unlawfully withheld the stylists pay for work performed from March 15 to March 21, prior to the salon closures.

Another related lawsuit — Miller v. Creative Hairdressers Inc. — was filed against the same employer about 10 days later in the U.S. District Court for the Middle District of Florida alleging that employees had not received their April 7 paychecks. While these are only allegations at this point, the Hair Cuttery cases illustrate how quickly FLSA litigation can commence and expand. These cases not only offer plaintiffs the opportunity to recover double damages and attorney fees, but they are also often more readily pursued as collective actions.

Another emerging trend seems to be arising from time that employees spend being screened for COVID-19 symptoms before entering the workplace. In these cases, plaintiffs lawyers are pursuing claims that all the time employees spend waiting in line and being screened should be treated as compensable. These arguments can be very fact-specific, but certainly merit employers' attention.

Best Practices

The situations referenced above are not the only types of wage and hour litigation that will arise from the pandemic. Thus, employers should continue to ensure compliance with applicable wage and hour law, with special attention to auditing these potential new areas of exposure and paying particular attention to any recent changes in scheduling or pay practices.

In addition to the top four anticipated claims mentioned above, employers should continue to monitor the litany of other emerging COVID-19 claims and activity, including but not limited to alleged Worker Adjustment and Retraining Notification Act violations, workers' compensation claims based on purported workplace exposure, and on the other side of the coin, negligence lawsuits that attempt to evade the traditional exclusive-remedy nature of workers' compensation coverage.

Employers are also seeing and should be prepared for union organizing attempts, related to concerns over staffing levels, availability of personal protective equipment and/or general safety issues. The best practices mentioned above are among those that employers can implement now to reduce their risks of litigation.

Employers should also carefully follow the Centers for Disease Control and Prevention's guidance for businesses (including social distancing practices) and for cleaning and disinfecting the workplace and document all efforts that they are taking to provide a safe work environment. Finally, as always, employers should encourage and facilitate open communication with employees as it relates to requests for time off, personal protective equipment, and other health and safety concerns. Doing so can save employers a lot of heartache in the long run.

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Lariza Hebert is an associate at Fisher Phillips.

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.

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