Employers navigating the coronavirus (COVID-19) pandemic cannot ignore the threat of labor and employment claims that may arise from the crisis. Indeed, a steady stream of pandemic-related lawsuits have already been filed, with employees seeking to hold their employers liable on an assortment of claims. Some of these claims are new, based on recently enacted statues and regulations. Others repackage existing anti-discrimination, wage-and-hour, and labor law theories to fit novel, COVID-related claims. In either scenario, the risks these suits present are real, and the potential liability is substantial.
Unfortunately, this initial wave of litigation is likely only the beginning. In the weeks and months ahead, the scale and variety of COVID-19-based claims will only increase as workplaces reopen and employers take difficult but necessary steps to address health and safety concerns.
Avoiding the risks posed by such litigation will require good judgment, informed decision-making, and a practical knowledge of the relevant legal issues. To that end, we have prepared a brief overview of the types of claims employers are likely to face in the coming months. We also offer strategies for employers to consider to mitigate their potential exposure.
COVID-19 STATUTES AND REGULATIONS
Statutes and regulations passed in response to the pandemic have had the perhaps unintended effect of creating new sources of employment litigation. At the state and local level, several jurisdictions have mandated paid leave for hardships relating to COVID-19, such as quarantine, medical treatment, or childcare. These developments require employers to stay up to date on the laws of all jurisdictions in which they operate to avoid claims relating to eligibility for paid leave, paid leave calculations, or retaliation for use of protected leave.
At the federal level, the Coronavirus Aid, Relief, and Economic Security ("CARES") Act imposed a number of conditions on the funds it made available to employers, including restrictions on furloughs, limitations on executive compensation, and prohibitions on stock buybacks. Although there is no indication that Congress created a private right of action to enforce these aspects of the CARES Act, employees may try to circumvent that hurdle by arguing that they can sue as thirdparty beneficiaries of the agreements employers entered to obtain federal funding. As a general rule, such claims would have to overcome precedent that, in the absence of a private right of action, a plaintiff cannot bring a third-party-beneficiary claim against the recipient of a government program for failing to comply with its terms. Nevertheless, one such suit has already been filed, with an employee alleging that an employer violated the conditions of CARES Act funding by reducing employee hours.
ANTI-DISCRIMINATION CLAIMS
Statutes that long predate COVID-19, such as federal, state, and local anti-discrimination laws, are likely to be a significant source of pandemic-related litigation. For example, many difficult judgment calls employers must make with respect to employees at heightened risk from COVID-19 are subject to potential challenge under the Americans with Disabilities Act ("ADA"). The Equal Employment Opportunity Commission ("EEOC") has stated that an employer may bar employees from the workplace for their own safety if the situation presents a "direct threat" that cannot be reduced or eliminated by reasonable accommodation. But the EEOC has also stated that an employer may not exclude an employee solely because she has a disability that the Centers for Disease Control and Prevention ("CDC") has identified as placing the employee at a "higher risk for severe illness" if she contracts COVID19. Threading this needle will likely involve consideration of the severity of the pandemic in a particular area, the employee's health, the employee's job duties, the likelihood that the employee will be exposed to COVID-19 at the worksite, measures that the employer is taking to protect all workers, and whether accommodations are available to mitigate risk.
The Age Discrimination in Employment Act ("ADEA") requires employers to make similarly complex judgment calls. According to the CDC, individuals aged 65 and above are at greater risk of severe illness if infected with the COVID-19 virus. The ADEA, however, generally precludes employers from making certain employment-related decisions on the basis of age. Moreover, it allows employees to challenge not only intentional discrimination (i.e., disparate treatment) but also facially neutral policies or practices that have a disparate impact on a protected category. Employers may thus face difficult decisions when considering whether, when, and how to return older, atrisk employees to work. As such, employers should evaluate potential "bona fide occupational qualification" or "reasonable factor other than age" defenses in this context.
Discrimination claims by parents, particularly following COVIDrelated school and childcare closures, present additional risks. Several states recognize parental or family responsibility status as a protected category. Additionally, Title VII prohibits employment decisions grounded in stereotypes about women as caregivers. Employers should carefully consider these issues when making operational changes in light of the pandemic
To read the full article click here
Originally published 29 May, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
