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Litigation Trends in COVID-19 Workplace Matters

Through July 31, employees and former employees had filed at least 436 workplace-related lawsuits against employers relating to COVID-19, according to the litigation trackers at Law360. There are two major trends that become apparent upon an initial examination of the data. The first involves the location of the lawsuits, while the second involves the type of lawsuits plaintiffs are filing.

  1. Highest Number of Claims: The three types of claims that employers have seen the most often when it comes to COVID-19 workplace claims involve remote work and employee leave issues (112), standard employment discrimination allegations (97), and retaliation/whistleblower claims (64).
  2. Moderate Number of Claims: While not as prevalent, the three types of claims still presenting significant challenges and high levels of liability for employers involve  wage and hour matters(32), unsafe workplace allegations (31), and Coronavirus Aid, Relief and Economic Security Act (19) claims.
  3. Lowest Number of Claims: Although these are the lowest number, the more significant claims involve wrongful death (14), breach of contract (11), noncompete and trade secrets (10), and the Worker Adjustment and Retraining Notification (WARN) Act (7) claims.

The type of COVID-19 workplace claim that plaintiffs have filed the most often relates to employee leave and remote work requests. One of the very first COVID-19 workplace lawsuits filed at the outset of the pandemic is representative of the many types of employee leave claims that have been filed across the country. The main allegation in these claims is that employers have wrongfully denied employees Families First Coronavirus Response Act paid leave benefits or terminated them in retaliation for requesting such benefits.  Other lawsuits filed across the country have begun to show a litigation trend involving plaintiff employees with preexisting health care conditions. In all of these cases, the plaintiffs alleged that they needed time off from work due to a heightened risk of COVID-19-related complications arising from preexisting conditions. Likewise, in all cases, the employees claimed that they were terminated once they inquired about their options for leave.

ISRI members should exercise caution when it comes to FFCRA compliance. Employers should ensure that all managers and supervisors are aware of the FFCRA, what benefits it provides to employees, and that HR should be notified immediately if a manger learns that an employee may need FFCRA leave. Visit the ISRI COVID-19 Resources Hub for more information.

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