An interesting report by Fisher Phillips, a management-side law firm that is tracking litigation coming from the COVID-19 pandemic and its impact on employers, found a big increase in employment lawsuits around COVID-19 situations. Fisher Phillips reports the lawsuits primarily involved remote work, leave, and employment discrimination issues.

Although a partial statistical analysis of total cases being brought across the United States, in a year-over-year comparison they report an increase of over 60% of new COVID-19 lawsuits filed across the country.

What are the most prevalent lawsuit complaints? Requests for remote work being denied. Where are these lawsuits being brought? California (not a surprise), but New Jersey was reported to have the highest number of COVID-19 lawsuits per capita. A Fisher Phillips blog reported New Jersey “stands out as the most dangerous place for employers when it comes to COVID-19 workplace litigation.” Following California and New Jersey in number of COVID-19 lawsuits is Florida, New York, and Ohio.

The report also found that new case filings tended to follow surges in COVID-19 case numbers. They saw an 18% increase in lawsuits filed from July to August of this year as the Delta variant took hold.

The firm also reported that small employers are getting sued more by this wave of lawsuits. The reason proffered is because small employers do not have the resources to stay up on changes to the laws and  COVID-19 employment compliance recommendations and requirements.

The law firm predicts more lawsuits to come as employers initiate vaccine mandates, particularly in the areas of religious accommodation. On the positive side, the law firm reported their numbers show so far 100% of the vaccine related cases where employers have required vaccination or loss of job have been dismissed in favor of the employer. However, this victory statistic does not take into account the cost of the employer’s distraction caused by responding to a lawsuit not to mention the cost of legal defense to get the case kicked out.

Fisher Phillips warns that just because vaccination mandate cases are being thrown out now does not mean employers will have it easy going forward. The management-side law firm points out, so far the plaintiff’s bar has not found a “really strong leg to stand on to bring a claim that’s related to the vaccine.” This was followed by a cautionary qualification; with “cutting-edge lawsuits it takes a while to kind of find your legal ground.”

COVID-19 Vaccination Mandate

For larger employers over 100 employees, new grounds for legal challenges will be coming from the new Biden vaccine mandate. Employers are waiting for the Occupational Safety and Health Administration (OSHA) to publish regulations that require employee vaccination.

New issues are immediately arising for employers that we hope the regulations will give guidance on. Otherwise, employers may be moving through a legal minefield.

Issues needing clarification are:

o   Who exactly gets counted towards the 100 worker threshold? Part time employees? Independent contractors? Workers that will stay remote? Early analysis indicates OSHA will use an enterprise wide calculation – not just per worksite. This will no doubt be addressed in the ETS. Although remote workers may not have to get vaccinated if they stay remote, if they have to come to the workplace for anything they will have to be vaccinated.

o   Who will pay for the weekly testing required of non-vaccinated employees and will regular testing lead to discrimination claims if employers somehow discriminate against certain workers?

o   Will employers have to pay for weekly time off for testing?  Early analysis indicates employers will have to pay for time taken to get vaccinated.

o   How long do employees have to become fully vaccinated?

o   What about workers that have had COVID-19. Do they still have to be vaccinated or get tested?

o   What proof of vaccination documentation will companies need to collect and who is responsible for vaccination tracking – the government or the individual business?

o   What can an employer do if an employee falsifies vaccination status?  Termination of employment? Could employer face legal action for wrongful termination?

o   What should happen to company vaccine incentive programs?

o   An on and on…

What can employers do before this mandate goes into effect?

• Use this upcoming mandate to continue to encourage employees to get vaccinated ahead of the requirement.
• Start collecting data on current vaccination status of workers. This is a legal question. Just don’t spread individual vaccination status around.
• Keep vaccination and testing information confidential and secure.

ASE members have received the best and most updated compliance information during the pandemic. ASE will continue to report on employment compliance requirements, employer best practices, collect and report on policies and practices, host webinars, and provide explanations and clarifications on employer safety compliance that we can. We invite members to continue reading EPTW and refer to the Contagious Diseases and Pandemic Toolkit for more valuable information and resources that will (hopefully) prevent costly legal entanglements.

Additional ASE Resources
Ask the Lawyer: What is a Reasonable Accommodation in a Post-Pandemic Environment - Under the ADA employers must have an interactive discussion with employees when they request an accommodation. With the pandemic, accommodation requests have changed. Work from home may not be reasonable. This session will cover the ADA accommodation process, what to expect post-pandemic, and how to document whether a request is reasonable or unreasonable. 30 minutes of live Q and A will allow you to ask any question you have regarding accommodation in a post-pandemic environment.  October 12, 2021 at 9:00 a.m. Complimentary for ASE members; $49 non-members. Register here.

Sources: 

COVID-19 Litigation Winter is Coming, Attys Forecast, LAW 360 (9/8/2021)

4 Questions Employers Have About Biden’s Vaccine Mandates LAW 360 (9/10/2021)

Companies Have Questions for President Biden About Vaccine Mandates New York Times (9/13/2021)

Employer Consideration Ahead of OSHA’s Vaccination Rule LAW 360 (9/14/2021)

President Biden’s COVID-19 Action Plan – What Employers Want to Know. Littler Insight )9/14/2021)