COVID-19–Associated Employment Litigation Replace

Tuesday February 9, 2021

In 2020, over 2,500 COVID-19-related labor lawsuits were filed in the United States. Ogletree Deakins’ interactive COVID-19 litigation tracker highlights the industries, locations and types of claims involved in these matters.

The healthcare industry almost doubles other industries in the most COVID-19-related labor disputes to date. The hospitality, manufacturing and retail sectors are also badly affected. These trends are not surprising as it is often difficult for employees in these industries to socially distance themselves from other employees and / or the public.

California leads the way with nearly 300 COVID-19-related lawsuits, followed by New Jersey (approaching 200 lawsuits) and Florida and New York, with each state exceeding 100 lawsuits. These states, along with Illinois, see the most class action lawsuits, mostly related to wages and hours.

Disability Discrimination; Nonconformity; Interfering with vacation under the Family and Sick Leave Act, the Families First Coronavirus Response Act (FFCRA), and state Vacation Acts; Retaliation claims make up the bulk of claims across the country. Few cases related to COVID-19 have made the final decision. However, there are certain trends in the courts that have faced dismissal requests over the past year.

Incorrect discharge for violations of public order

Some decisions reflect the reluctance of the courts to dismiss COVID-19-related labor claims early on. For example, in January 2021, a federal court in California denied a defendant employer’s motion to dismiss a number of claims, including constructive discharge in violation of public policy claims based on allegations that workers had “unreasonably harsh conditions in the workplace “Were exposed. The employer alleged that plaintiffs could not find any adverse employment practices or unbearable working conditions beyond those of their employees and that the alleged safety concerns were solely due to the global COVID-19 outbreak. The court denied the employer’s request for dismissal, finding that plaintiffs had complied with the pleading for their claims, particularly given allegations that there had been a number of COVID-19 cases at the employer’s facility during the relevant period have.

Appropriate forum for complaints about safety in the workplace

At the start of the pandemic, the courts faced the threshold of jurisdiction in workers’ lawsuits alleging workplace safety concerns from COVID-19 and alleging that employers had not done enough to create safe jobs during the pandemic . The courts are divided in the appropriate forum for these cases. For example, federal courts in Missouri and New York have petitioned employers for dismissal in these cases and found that it is not for the courts to rule but that jurisdiction rests with the Federal Agency for Safety and Health at Work (OSHA). However, an Illinois state court denied an employer’s petition for dismissal on the same matter, stating that the workers’ claims have resulted in “a factual dispute that includes credibility decisions that the court is well suited to”.


Some courts have been reluctant to petition for dismissal in cases alleging violations of the requirements of the Worker Adjustment and Retraining Notification (WARN) Act of 1988. For example, in January 2021, a federal court in Florida rejected the defendant employer’s application for dismissal. who argued that notification under the “natural disaster” and “unforeseen business circumstances” exemptions from the notification requirements of the WARN Act was not required. While the court recognized that COVID-19 could be a “natural disaster,” it found that the exception did not apply as the virus was an indirect – not direct – cause of the layoffs. Rather, the “dramatic decline in business” that the defendants experienced as a result of the pandemic was the direct cause. While the court recognized that the exception “unforeseen business circumstances” could apply, it ruled that the dismissal at the stage of the application for dismissal was not appropriate as there was a factual question as to whether the defendant employers could have given more notice. The decision shows that employers may want to make sure to notify them as early as possible of company closures or mass layoffs in the context of COVID-19.

Accommodation related injunctive relief

At least one court has reviewed and granted an injunction related to non-compliance with claims. A Massachusetts federal court in September 2020 granted a plaintiff’s motion for an injunction and ordered the defendant employer to allow the plaintiff to telework as reasonable accommodation for 60 days or until another court order. The defendant employer allowed remote working at the beginning of the pandemic, but later asked its managers, including the plaintiff, to return to work at the company location. The plaintiff, who suffered from asthma, sought accommodation in the form of continued remote work after the employer asked managers to return to work on site. The defendant employer rejected the application on the grounds that managers would have to be back in the building to support operations.

The court ruled that during the COVID-19 pandemic, analyzing whether a plaintiff has a disability should take into account the entirety of the circumstances, where the plaintiff is likely to have a disability under the Americans with Disabilities Act (ADA) can determine) under the current conditions; that the plaintiff was able to perform the essential functions of the contract with or without accommodation, having previously concluded successful teleworking arrangements; and that the respondent employer did not participate sufficiently in the interactive process or determined that further teleworking would lead to undue hardship. As a result, employers may want to continue to consider the entirety of the circumstances when evaluating accommodation requests and performing and documenting the steps taken during the interactive process.

Arbitration agreements confirmed

Some courts have hesitated to seek injunctive relief when the parties are subject to an arbitration agreement despite the emerging nature of COVID-19-related claims. For example, in May 2020 a federal court in New York denied a plaintiffs union’s motion for a temporary injunction requiring the defendant employer, a private hospital, to take additional steps to reduce the risk of the spread of COVID-19 to arbitrate the matter. While the court recognized that some nurses would likely be contracting COVID-19 in the time between its decision and the completion of the arbitration, it found that the defendant was following the current guidelines of the U.S. Centers for Disease Control and Prevention (CDC)) the risk to the nurses was outweighed by other factors, including the risk of frustrating the arbitration and “interfering inappropriately”[ing] with the hospital’s ability to make business decisions at a time when judicial interference could be particularly problematic. “

Business interruption claims

Several courts have granted requests from business insurers to dismiss claims by companies seeking coverage for business interruption losses caused by the COVID-19 pandemic. District courts in California, Florida, Michigan, New Jersey, New York, and Texas have approved all insurers’ dismissal requests, ruling that COVID-19 does not cause sufficient property damage to trigger business interruption coverage because it does. “demonstrable” physical impact on the property, which can normally also be cleaned upon exposure to the virus.

In Ohio, a federal district judge ruled that the language of an insurer’s business income coverage was susceptible to interpretation that an insured building was suffering “physical loss or damage” when state governments ordered the building to cease to be used as intended While another federal district judge confirmed the following question to the Ohio Supreme Court: “Does the general presence of the novel coronavirus SARS-CoV-2 in the community or on surfaces in a building represent a direct physical loss? or property damage; or does the presence of a person infected with COVID-19 in a building represent direct physical loss or damage to property in that building? “

Looking ahead: 2021

The current introduction of COVID-19 vaccines to the public under various aspects of their safety and efficacy has led employers to implement binding vaccination guidelines, voluntary vaccination guidelines (with or without incentives) or strategies that leave this up to the employees to grapple with deciding whether to be vaccinated – while enforcing other safety measures in the workplace.

© 2020, Ogletree, Deakins, Nash, Smoak and Stewart, PC, All rights reserved.National Law Review, Volume XI, Number 40

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