To date, nearly 60 percent of coronavirus-related employment litigation falls into one of three categories: wrongful discharge, leave and discrimination, according to in-house tracking by my law firm, Ogletree, Deakins.

Twenty-five percent can be classified as discharge claims, which include whistleblower and retaliation issues stemming from employers' failures to protect employees, follow guidance, and misuse of Coronavirus Aid, Relief, and Economic Security (CARES) Act funds; and employees' refusals to return to work. Nineteen percent of claims are related to leave violations of the Family and Medical Leave Act (FMLA), Families First Coronavirus Response Act (FFCRA) and the CARES Act. Thirteen percent of COVID-19 claims can be categorized as discrimination, which include accommodations issues and are largely comprised of disability claims under the Americans with Disabilities Act.

Following are some scenarios by which coronavirus-related claims may arise or already have.

Discharge claims

In fiscal year 2019, just under 2,100 whistleblower complaints were filed with the Occupational Safety and Health Administration. To date, OSHA has already received more than that in COVID-19 related complaints, including those for inadequate personal protective equipment, exposure to illness by co-workers and customers, and failure to enforce safety rules.  Although OSHA prohibits employees generally from walking off the job, they are protected "if the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition," 29 CFR 1977.12. Although an employee may not pursue a private cause of action, if OSHA finds merit after investigating the complaint, OSHA litigates the case as the employee's attorney.

The National Labor Relations Act protects employees who engage in "… concerted activity for mutual aid or protection" in the workplace, including those not in a union environment.  29 U.S.C. § 157. The NLRA is another avenue for retaliation claims where employees are disciplined after acting together to raise health and safety concerns related to COVID-19, including concerns raised on social media.

Leave Claims

Less than three weeks after FFCRA went into effect on April 1, the first plaintiff filed claims under this act in federal court in Pennsylvania. The company's former director of revenue management alleges she was terminated for seeking time off to care for her child. Just as with FMLA, in addition to retaliation, other FFCRA cases allege denial of benefits and/or interference with the employee's leave entitlement. Note that managers can be sued personally because FFCRA adopts the Fair Labor Standards Act's broad definition of employer—"any person acting directly or indirectly in the interest of an employer in relation to an employee," 29 U.S.C. § 203(d).

Although the severity of COVID-19 symptoms will not rise to the level of a disability for many people, the ADA also protects employees who have "a record of a disability" and those the employer "regarded as" as disabled. 42 U.S.C. § 12102(1). Further, certain employees are at a higher risk for severe illness due to underlying conditions that may be disabilities. As leave can be a reasonable accommodation for a disability, ADA claims (which must be filed first with the Equal Employment Opportunity Commission for failure to accommodate can arise in this context.

Discrimination Claims

A case filed in federal court in New York alleges that the employee was chosen for layoff before others because of his age, in violation of state and local age discrimination laws. The EEOC has published guidance making clear that employers should avoid blanket policies requiring "high risk" employees (as defined by the Center for Disease Control and Prevention guidelines), such as older or pregnant employees, to continue to telework while others return on-site, which blanket policies run afoul of federal laws prohibiting age and pregnancy discrimination.

Mitigating the Risk

Taking steps in advance to avoid these risks will not eliminate them, but will reduce the risk and better position the employer to defend future litigation and agency complaints.

  • Monitor and comply with COVID-19 requirements.
  • Prepare a workplace safety plan.
  • Explore ways to increase social distancing and remote working opportunities.  This will not necessarily continue after the pandemic.
  • Implement and require screening and stay-home policies. Include confidentiality, complaint and non-retaliation provisions.
  • Implement and publicize reopening requirements, including masks, social distancing signs and floor markers and cleaning processes.
  • Ensure relevant policies are updated, including policies related to social media, non-harassment, anti-discrimination, anti-retaliation, FMLA, emergency leaves under the FFCRA, and any state or local laws.
  • Check for consistency with public health recommendations and new laws.
  • No policies or practices designed to "protect" older or pregnant employees more than other groups.
  • Approach requests for leave and remote considering whether they are requests for accommodations and initiate the ADA interactive process as appropriate, documenting all of your communications and efforts.
  • Encourage internal complaints/reports and handle them properly.
  • Complaint procedures should be widely disseminated and easily accessible.
  • Consider 24-hour toll-free hotlines, especially when employees work nontraditional shifts or are removed from immediate access to upper level managers and/or human resources.
  • Consider additional ways to publicize the policy, such as the home screen of the company's electronic system and any relevant links.
  • Investigate promptly and thoroughly.
  • Educate managers who are designated to receive complaints on the policies and employment laws.
  • Train/remind managers to investigate promptly and thoroughly or to escalate complaints to upper management immediately.
  • Even anonymous complaints should be investigated as thoroughly as the information permits.
  • Take consistent disciplinary action with respect to violations.

Amie Willis is a shareholder in Ogletree Deakins' Atlanta office. She is a member of the firm's COVID-19 Litigation practice group and represents employers across the country in employment matters in a variety of industries.