It May Not Be a Bonanza, but the Risks for Employers Are Real
By John Gannon, Esq.
Businesses across the globe are in the midst of planning, preparing, and executing their reopening strategies. While this news is encouraging, employers face novel and complicated legal questions about their potential liability to employees who either get sick at work or cannot return due to medical or childcare-related reasons.
Searching for answers, businesses leaders are confronted with an array of local, state, federal, and industry-specific protocols for operating safely. Charting a course in the face of this uncertainty is no small task. Unfortunately, one thing remains clear: there will be a wave of lawsuits triggered by the difficult business decisions made during this challenging time.
The COVID-19 crisis will send shockwaves through the courts and fair-employment agencies (such as the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination) for years to come. Senate Majority Leader Mitch McConnell remarked that an “epidemic” of these lawsuits will lead to “a trial-lawyer bonanza.” While likely overstated, the concern for employers should be real. Numerous COVID-19-related lawsuits have been filed, with many more on the way. Here are a sampling of those legal theories, with prevention tips and tactics at the end.
Negligence and/or Wrongful Death
One of the scariest claims for businesses will be negligence and wrongful-death lawsuits. In short, these actions may be lodged by employees (and even customers) who are harmed by COVID-19 because the employer failed to keep the work environment safe.
How might this look? Imagine that employees in a manufacturing plant return to work as the business reopens (or perhaps they have been working all along if the workers are deemed ‘essential’). Joe, who works on the factory floor in close proximity with others, tests positive for COVID-19. Mike, who works near Joe, also tests positive. Mike in turn infects members of his household, including an aging, immune-compromised parent. Can any of them sue the business?
“Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’”
Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’ Proving the root cause of a COVID infection is very difficult, as the virus spreads easily and can be contracted nearly anywhere.
In the above example, would Joe have a workers’ comp claim? Probably not, unless he can show others he was working in close proximity with someone who had the virus before him. What about Mike? He has a better claim, but still no sure thing. And certainly the family member would not be filing a comp claim. Instead, a negligence or wrongful-death suit might follow.
Recently, the relative of a retail-store employee in Illinois who died from COVID-19 sued the retailer for negligence and wrongful death. The lawsuit claims that the employee contracted COVID-19 in the store, and the business did not do enough to protect employees from the virus. All businesses that are open or reopening should have this case on their radar.
By now, everyone should know that the Families First Coronavirus Response Act (FFCRA) allows employees to take paid leave for a number of COVID-19-related reasons, including the need to care for children who are unable to go to school or daycare. Employees who are denied FFCRA rights or retaliated against for taking FFCRA leave can sue you in court. Successful employees may be entitled to reinstatement, lost wages, attorney’s fees, and double damages.
The first FFCRA-related lawsuit was filed last month. In the case, a female employee (and single mom) claimed she was fired because she requested FFCRA leave due to her son’s school closing. The employee allegedly discussed her need for leave to care for her son, and was told that the FFCRA was not meant to be “a hammer to force management into making decisions which may not be in the interest of the company or yourself.” She was fired a few days later and then filed what might be the first FFCRA lawsuit. Many more are certain to follow.
At the time of this article, the unemployment rate in the U.S. stands at almost 15%, and more than 30 million Americans have filed for unemployment since mid-March. Each layoff decision comes with the risk that someone will claim the reason they were selected was discriminatory.
Suppose Jane, who is 60, gets laid off, while many younger workers were retained for employment. Jane may claim that the reason was at least partially motivated by her age. If she was right, it would be would be textbook age discrimination.
Employees who raise complaints or concerns about workplace safety are protected against retaliation by the Occupational Safety and Health Act. Similarly, Massachusetts has a law that protects healthcare workers who complain about practices that pose a risk to public health. We expect an increase in these lawsuits during this pandemic.
These novel COVID-19-related lawsuits generally fall into one of two buckets: claims related to worker health and safety, and discriminatory or retaliatory adverse employment actions.
To protect against the first batch, businesses need to rigorously follow federal, state, and local guidance on maintaining a safe workplace. Agencies like the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission have issued guidance on topics like maintaining safe business operations, temperature checks for employees, and personal protective equipment. Check with your risk-management advisors to see if they have developed checklists or other tools you can use to aid in your business reopening.
Avoiding the second type of lawsuit (discrimination, retaliation, etc.) involves the same tried and true principles that were critical before COVID-19. Make sure you have reasonable, business-based justifications for your decisions that are not motivated by characteristics like race, age, gender, or use of FFCRA leave. These business-based reasons should be well-documented and understandable to laypeople, who may be reviewing your justification in a jury room. Finally, when in doubt, consult with your labor and employment-law specialists.
John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations; [email protected]