The news has warned:  “A ‘tidal wave’ of COVID-related workplace lawsuits could be on the way”.  We previously discussed a possible wave of wage and hour claims and protected leave claims and the steps to take now: CCOVID-19 Related Employer Liability Claims on the Rise. Employers should also consider increased exposure in the following areas:

 Increase in Safety-Related Actions

COVID-19 creates several areas of potential safety-related liability for employers.

The Occupational Safety and Health Act (“OSHA”) requires employers ensure their workplace is “free from recognized hazards that are causing or likely to cause death or serious physical harm.” COVID-19 is a recognized hazard in the workplace, thus employers who fail to implement appropriate preventative measures may face enforcement actions by OSHA. Although employees are generally prohibited from suing their employers for unsafe working conditions under the Act, potential fines for citations can be substantial.  Consistent with OSHA’s recommendations, we too urge employers to follow the CDC’s COVID-19 recommendations.

Employees may allege constructive termination due to a lack of proper safety precautions. Again, following, at a minimum, the CDC’s COVID-19 recommendations will provide defensible positions to such claims. Although employees who contract COVID-19 on the job can file workers’ compensation claims, which generally would be their exclusive remedy, a showing of gross disregard for safety may support claims against an employer. Following the CDC’s guidance quickly disposes of these claims.

Finally, third-party lawsuits may be brought when a non-employee, such as a customer or client, contracts COVID-19 due to the actions of an employer. Congress is considering legislation to limit employer liability related to COVID-19, but it is unclear if such efforts will pass. Even if passed, such legislation may be challenged and will still include exceptions for gross negligence, recklessness, or willful misconduct, which may be the case with Covid related issues. Following CDC Covid-19 guidance again provides the best defense.

Challenges to Current Layoffs and Furloughs

With the COVID-19 pandemic, millions of workers were laid off or furloughed, leading to potential claims of wrongful termination.

Discrimination claims may be one type of challenge. If a displaced worker falls into a protected category, such as race or disability, they may claim they were targeted for furlough based upon this protected category, potentially leading to a claim of discrimination. Keep in mind these protected categories may include age (if 40 or older), gender, gender identity, sexual orientation, race, color, religion, national origin, disability, genetic information, military service, and several other protected class statuses.

When making a business decision to lay off/furlough multiple workers at a location or in a job classification, claims of discrimination become less likely.  However, when a layoff targets some, but not all, workers at a location, in a job classification, or the like, discrimination claims challenging the selection criteria may result. Generally, the more objective the criteria used, for example, “last in/first out,” the less exposure for discrimination claims; conversely, the more subjective the criteria used, the greater the exposure to claims of discrimination. At a minimum, employers should create a written evidentiary record of the non-discriminatory, business-related criteria used to make such layoff/furlough decisions.

Employer should carefully evaluate the adverse impact to protected categories before finalizing layoff decisions.  If members of a protected group, for example, workers 40 years of age and over, are selected for layoff in greater percentages than their representation in the relevant work force, the employer may want to reexamine its selection process. The EEOC reminds employers that selection of individuals for temporary or permanent employment changes must not be made because of any protected characteristic, including the race, color, religion, national origin, sex, age, disability, or protected genetic information of the individual, or in retaliation for engaging in protected activity.

Some reductions in force may trigger notice requirements. The Workers Adjustment and Retraining Notice (“WARN”) Act requires employers with 100 or more employees to provide at least 60 days’ written notice of layoff prior to the effective date of the layoff, if the requisite number of employees at a site of employment are laid off, and in some instances if employees are furloughed.  The WARN Act provides for an exception to its notice requirements in the event of “unforeseeable circumstances.”  It is likely that failure to provide layoff notices will result in legal challenges to which employers may assert the “unforeseen circumstances” defense.  How a court would rule on such legal challenges is unknown.

Finally, employers should consider providing severance in exchange for a Release Agreement, particularly with large layoffs involving employees falling within protected categories.  With few exceptions, most employment-related claims can be waived through a properly prepared Release Agreement. A release may be particularly important when laying off an employee with a real or perceived disability, or who is in a protected age group, two protected categories which may especially give rise to discrimination claims in the era of COVID-19.

The lawyers at Faulkner Law Offices, PLLC have decades of experience in employment matters and can assist employers and employees in maneuvering during these challenging times.