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We all know that the COVID-19 pandemic has led to a historic increase in filings for unemployment benefits. But those are not the only employment-related claims that have risen during the pandemic. Workplace lawsuits are also on the rise. As a result of the unique restrictions COVID-19 has placed on businesses, new legal requirements for employers and new rights for employees’ coronavirus-related employment, lawsuits are now abundant in the courts, and likely to become more so.
Fisher Phillips, one of the nation’s largest management-side employment law firms, has been tracking all lawsuits between employees and employers (both class and individual actions) growing out of the COVID-19 pandemic. As of December 2020, the firm’s COVID-19 Employment Litigation Tracker reports more than 1,200 lawsuits relating to the pandemic in state and federal courts across the nation. According to the tracker’s numbers, California, with more than 240 cases, has the most by volume, and New Jersey, with more than 17 cases per million people, has the most cases per capita. Only the Dakotas, Maine, West Virginia and Wyoming have yet to see COVID-19 cases on record.
As significant as those numbers are, the data captured by the litigation tracker is telling us more than the sheer volume of COVID-19 related lawsuits. Digging deeper into its findings, we can see revealing trends in the types of cases being filed, understand their disproportionate impact on employers of different sizes and in different industries, and set our expectations about where this litigation trend may be headed in months to come.
The pandemic has given rise to a surprisingly varied array of legal fights between employees and employers. Employees have accused employers, for instance, of retaliating against them for complaining of the employers’ failure to adhere to pandemic-related, and legally required, safety measures. Employees have also asserted pandemic-related violations of the Family Medical Leave Act and claimed that employers have used the pandemic as cover for terminations that violate discrimination laws.
Sadly, the most predictable cases may be wrongful death claims arising from employers’ alleged negligence. Take the case of Monica Montgomery, who died of COVID-19 at age 44 after caring for an infected patient at an assisted living facility in Texas. Montgomery’s family claims her employer was not only aware of the patient’s condition, but also withheld information about the illness from Montgomery and her coworkers, one of whom was her daughter. In one of the case’s poignant details, Monica Montgomery died on Mother’s Day.
Other claims have arisen from legislation passed specifically to protect workers impacted by the virus. The Families First Coronavirus Response Act (FFCRA), for example, is designed to allow emergency paid sick leave, in addition to emergency family and medical leave, for those unable to work due to COVID-19. The FFCRA has been the basis for multiple workplace lawsuits since its inception, many of which claim employers denied leave to parents who needed to be at home with their children during extended school closures or medical emergencies.
Recent analysis by Fisher Phillips reveals other interesting trends regarding the surge in workplace lawsuits and the industries they continue to impact. Particularly worth noting is the effect on smaller employers as opposed to larger corporations. As of mid-November, the law firm reports that “employers with 50 or fewer employees have been sued at a far greater rate than larger employers, facing a staggering 38% of all COVID-19-related lawsuits.”
It should be noted, however, that the bulk of lawsuits targeting smaller businesses involve work-from-home or medical leave disputes, whereas larger corporations are more commonly fielding claims of retaliation, negligence and wrongful death. The same report finds that while an increase in litigation is being observed by most industries across the country, the healthcare industry and its workers remain disproportionately affected, accounting for nearly a quarter of all relevant claims. Workers in manufacturing (which accounts for 9% of all claims), retail (8%) and the government (7.5%) have also been active in filing COVID-19-related suits.
With the level of uncertainty still surrounding COVID-19 and its sustained effect on the way businesses operate, many believe the rise in workplace lawsuits will only continue into 2021. This sentiment seems to echo the expressed concerns of Senators John Cornyn (R-TX) and Mitch McConnell (R-KY), who introduced the SAFE TO WORK Act (STWA), which aims to extend liability protections for businesses and organizations not already covered by state-specific immunity laws, and which can’t be shown to have acted willfully or committed gross negligence.
While the STWA has been much-debated, its impact may not be as great as some expect. “Because the STWA and applicable state laws focus more on personal injuries stemming from coronavirus exposure,” writes attorney Tom Spiggle for Forbes, “they will not be applicable in many coronavirus employment lawsuits.” They would not cover, for instance, the retaliation and discrimination claims that account for 22% and 21% of all lawsuits in the tracker, respectively. Spiggle recognizes, however, that the proposed legislation “could still play a role in limiting certain lawsuits that an employee could potentially bring against his or her employer.”
It is important to remember that the current data available reflect only active litigation claims, and that many workers who feel their rights have been violated similarly have not yet filed claims. In fact, some observers expect employment-related suits to increase “exponentially” in the next six months to one year.
Employers looking to learn more about the existing lawsuits related to coronavirus — as well as emerging litigation trends in this area — can find more in-depth analysis by visiting the live Fisher Phillips COVID-19 Litigation Tracker. You can also find out more by signing up for a free trial* of Lexis+TM for Trends Analysis and Practical Guidance, which helps identify legal trends and offers best practices for avoiding workplace litigation related to COVID-19 issues. Lexis+ also includes guidance from more than 1,200 practitioners and 99 Am Law 100 firms about defending such lawsuits should employees file them.