COVID-19 Litigation: The Next Wave

Just when you thought it was safe to go back in the water (or stop sheltering in place anyway), a wave of COVID-19-related employment lawsuits are being filed across the country.  At our last count, nearly 50 labor and employment-specific cases have been filed.  The first in Oregon was filed earlier this month by a former assisted living facility employee who seeks $950,000 in damages for alleged whistleblower and sick leave retaliation.  Although the types of claims being brought by employees are typical—wage/hour, whistleblower, contract, wrongful termination, protected leave and discrimination claims, WARN Act violations—employers now face a perfect storm: defending real-time decisions made to keep their businesses afloat against the backdrop of a global pandemic that has completely disrupted business operations.  (And as we all know, “You can’t just call time out and stroll on into the beach if you don’t like the way things are going.”)

As we have mentioned during several COVID-19-related client briefings, courts will now have to wade into murky waters and provide clarity on how newly enacted or amended local, state and federal leave laws such as the Family First Coronavirus Response Act (“FFCRA”) operate, especially where statutory and regulatory guidance has not always been clear.  Courts will also need to provide direction on how well-settled legal schemes, such as disability and contract law, apply in the face of a pandemic.

Of particular concern for employers right now are trends in wage and hour class actions suits, which can pose significant risk of crippling wage penalties and plaintiffs’ attorney fees, as well as leave discrimination and whistleblower retaliation claims. These kinds of claims could draw sympathy from jurors and sink a business.  Here are a few of examples of employment cases recently filed across the country, and trust us, “You’re gonna need a bigger boat.”

FFCRA and Protected Leave Claims

• Alleged discriminatory firing after plaintiff took time off for COVID-19 symptoms. (Indiana, April 28, 2020)
• Single mother alleged she requested leave under FFCRA after her child’s school closed but her request was denied and she was told if she did not come to work, she would be fired. (Alabama, April 24, 2020)
• General counsel claimed employer was “belligerent and annoyed” by her request to telecommute, resulting in her firing. (Texas, April 23, 2020)
• Nursing home employee fired after requesting leave to self-quarantine following exposure to infected residents. (New Jersey, April 22, 2020)
• Among other allegations, auto group executive claims he was fired after seeking accommodations during the pandemic. (Texas, April 22, 2020)
• Employee fired after missing work due to illness and while waiting for COVID-19 test results. She alleges she was told by managers not to return to work until her test was processed but when it took more than a few days, she was terminated.  (Michigan, April 21, 2020)

Wage and Hour Claims

• Employer refused to pay remainder of wages after layoff. (Texas, April 23, 2020)
• Class action by correctional officers for failure to pay regular and overtime wages for work done during COVID-19 crisis. (Illinois, April 21, 2020)
• After employee experienced COVID-19 symptoms, employer allegedly instructed her to stay home from work until she had a negative test result. After being unable to obtain a test, she was not allowed to return to work and was not paid for the leave.  (South Carolina, April 21, 2020)

 Whistleblower and Wrongful Termination Claims

• Former CEO sued for whistleblower retaliation, among other claims, after his plan for reorganization was not followed and he, along with all other employees of a cannabis enterprise, were terminated. (California, April 24, 2020)
• Employee fired from nursing home after complaining about facility’s refusal to test residents and co-workers for COVID-19. (New Jersey, April 22, 2020)
• Employee fired due to decision to self-quarantine and after reporting co-workers’ violation of travel policy during pandemic. (Arkansas, April 22, 2020)
• Employee terminated after he told other employees that a co-worker had been exposed to COVID-19. (Pennsylvania, April 21, 2020)

The good news is you don’t have to go into the deep end alone.  Our attorneys are actively monitoring COVID-19-related employment litigation trends and are poised to assist with litigation avoidance strategies, and defense of lawsuits as they are threatened or filed.  We will continue to update and address defense and litigation avoidance strategies in future postings.