I received an email from a lawyer friend in Houston: She was flipping through her college books and found Daniel Defoe's novel, "Journal of the Plague Years," published in 1722, concerning the London plague of 1665. She had underlined the following passage, "The Inns of Court were all shut up; nor were very many of the lawyers in the Temple, or Lincoln's Inn, or Gray's Inn, to be seen there. Everybody was at peace: there was no occasion for lawyers… they were generally gone into the country." Fast forward to a May 1 article from the Washington Post, titled, "Nearly 800 Lawsuits and Counting," by Shayna Jacobs, which tells a far different story. The cases include consumer litigation, insurance issues, and of course employment law.

Let's start with the first lawsuit under the recently enacted (April 1), "Families First Coronavirus Response Act" (FFCRA). It prohibits retaliating (among other circumstances) against employees who seek to work from home in order to care for a child who is homebound because school is closed. The law applies to employers with fewer than 500 employees and contains an exemption, in certain circumstances, for employers with under 50 employees.

First case out of the gate is Stephanie Jones v. Eastern Airlines (yes, under 500 employees, according to her federal court complaint). Jones alleges that she repeatedly asked several managers to work from home in her job as revenue manager. The law allows (among other leave rights) employees up to two weeks of paid leave to do just that; stay home with children when their school is closed because of the COVID-19 virus. The irritation grew on both her part and on the company's part with an exchange of emails with the penultimate exchange from a manager of the company (in response to a lengthy email from Jones) stating that the law was designed as a "safety net" for employees not as a "hammer to force management into decisions which may not be in the best interest of the company or yourself." The manager's email ends with a promise to get back to her shortly. This exchange was on March 24. Promises were kept with the manager telephoning her on March 27 (Zoom wasn't ubiquitous—yet) and telling her that she was terminated because of a "conflict" and because of "unprecedented times." This lawsuit quickly followed. As of this writing there was no response filed by Eastern Airlines.

A few points to keep in mind: Because the FFCRA is based on the Family and Medical Leave Act and the Fair Labor Standards Act, there is individual liability on the part of decision-making managers who can be sued in their personal capacities. This occurred in the Jones case when the author of the email was sued personally. Damages are hefty with the winning plaintiff getting lost back pay that is automatically doubled as liquidated damages unless the employer establishes that it acted in good faith in its decision-making. And these lawsuits will likely be immunized from the obligatory Rule 12 (b)(6) motion if the plaintiff scrapes together some evidence of hostility to the taking of leave as we see alleged in Jones with the comments about the purposes of the FFCRA. Jones is just the start as there will be many, many similar fact patterns given how rapidly events befell all of us in March and April. 24 ( (The Complaint does tells a story.)

And speaking of working from home, what about employees who did but now the employer wants them to return to the workplace? The EEOC issued guidelines on May 7th on this issue. Let's go through some scenarios. Scenario No 1: Employee says, "I like working at home and want to continue to do so?" No dice because an employer can require you to come back. Scenario No 2: Employee says "I am afraid to come back because I feel safer working at home." No dice. Generalized fear does not a doctor's note make. Scenario No 3: Employee says "I have a disability dealing with my immune system and need to work from home because it limits my exposure to COVID-19." Bingo. An employer must, according to the guidance, discuss with the employee whether working from home is a reasonable accommodation to the disability.  And the employer should provide an accommodation unless to do so would impose an undue hardship on the employer. In a refreshing nod to reality the guidance states that in our very troubled economic times that what was once a reasonable accommodation now might be an unreasonable one if cost is a factor in providing the accommodation.

By contrast, what about an employee who wants to come back to work but has an underlying condition—diabetes, hypertension, obesity—that endangers the employee who contracts COVID-19? Can an employer deny the employee a return to work? The guidance answers the question with an emphatic "no." To do so would be a per se violation of the Americans with Disabilities Act unless the employer satisfied the very heavy burden of proving the employee would be a direct threat to herself or others. Note the Catch 22: if the employer fails to follow CDC guidelines at work then the employee could be a direct threat to herself but it is the fault of the employer.

What else? Claims under the Fair Labor Standards Act (FLSA) will mushroom, Employers who require exempt managers (salaries) to perform nonexempt work (hourly wages) will find that the once exempt employees will now be entitled to overtime compensation. Employers who, as another cost saving measure, require employees to be on call for emergencies will arguably owe compensation for the waiting time to receive an assignment .Employers who fire an employee who complains about working unpaid overtime will be the target of a retaliation lawsuit under the FLSA which includes the possibility of punitive damages.

A final thought: Employment laws, whether new or traditional, draw from a settled well of knowledge and practice. As the song from the classic movie, "Casablanca," reminds us, "the fundamental things apply as time goes by." Virus or no virus.

Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. His email is [email protected].