In this Ropes & Gray podcast, Doug Brayley, a partner in the employment, executive compensation & employee benefits practice group, is joined by Elena Davis, an associate in the litigation & enforcement practice group, to discuss recent trends in employment litigation related to COVID-19, as well as some general considerations for employers going forward.
Elena Davis: Hello, and thanks for joining us today on this Ropes & Gray podcast. I’m Elena Davis, an associate in the litigation & enforcement group. Joining me is Doug Brayley, a partner in the employment, executive compensation & employee benefits group. We’ll be discussing recent trends in employment litigation related to COVID-19, as well as some general considerations for employers going forward.
Doug, what do we know about whether and how COVID-19 has affected employment litigation generally?
Doug Brayley: Well, the statistics tell us that there have been some changes. As of last month, plaintiffs had filed approximately 640 federal cases and 800 state cases involving alleged violations of employment law related to the novel coronavirus and the related economic disruption. Note: the overall employment litigation numbers are actually down from where they think they would be in a normal year. Over the second and third quarters of 2020, the number of employment case filings was approximately 12% lower as compared to the number for those quarters in 2019. Given that the number of employment lawsuits is generally steady year-to-year, this dip is almost certainly COVID-related. Unfortunately, this doesn’t mean that these cases are getting resolved any faster—in fact, the average amount of time from a case’s initial filing to trial has increased by over four months.
Elena Davis: Thanks, Doug. Can you tell us what exactly is causing these changes?
Doug Brayley: The dip in employment case filings during the pandemic could have several explanations. One, fewer people are working at the office—so issues arising out of time spent at the workplace and with other employees may not be as prevalent. Two, fewer people are working, period, given that many companies had to implement temporary or permanent layoffs. Third, some people may feel that their employment status is more precarious because of the pandemic, and as a result they may be more fearful of adverse consequences from filing a lawsuit. Fourth, plaintiffs’ lawyers may be waiting (as much as possible) until court dockets and processes are more normal. The pandemic has almost certainly caused the increased delay between an initial filing and trial. I can actually tell you, Elena, that in at least one case I’m working on, the plaintiff’s lawyer has been pushing mediation, expressly in an effort to avoid a backlogged state court system.
Elena Davis: In that case, it sounds like these changes are likely temporary. As for the lawsuits that we have seen over the past nine months, what kinds of COVID-related claims have plaintiffs pursued?
Doug Brayley: The claims that have been filed have largely fallen into a few different categories. First, many claims have alleged violations under a recently enacted law called the Families First Coronavirus Response Act, or the “FFCRA.” Generally, these claims involve employees alleging termination after requesting leave under the FFCRA, or alleging that employers are not properly informing employees of their rights under the FFCRA. Second, there have been many discrimination claims, typically based on age or disability, filed by plaintiffs with underlying health conditions or who are at an increased risk due to their age. A third category of cases involve claims of retaliatory termination under various state statutes or state common law. These plaintiffs have commonly claimed that their employers terminated their employment in retaliation for taking leave after becoming infected with, or exposed to, the coronavirus, or for raising concerns of workplace safety violations. Finally, some plaintiffs have asserted workplace safety violations, such as a lack of personal protective equipment, or lax guidance or compliance with mask-wearing and CDC-recommended hygiene practices.
Elena Davis: It certainly seems that the pandemic has presented several new grounds for employment claims. Have these claims been concentrated in certain industries?
Doug Brayley: Yes—there are several industries that seem to be more likely to see these claims. Those industries include health care, assisted living or long-term care facilities, retail, manufacturing, and restaurants and bars. Of course, the common thread in those industries is that they often require in-person work. We haven’t seen as many of these lawsuits in the entertainment, finance, pharmaceuticals, or professional services industries, likely for the same reason.
Elena Davis: That makes sense. It sounds like we’ll see more of these claims across this second group of industries if and when they start to return to in-person work.
Doug Brayley: I think so—until a vaccine is widely available to everyone, and maybe even for some time afterwards, certain issues like workplace safety will continue to be a relevant concern for employers requiring or permitting in-person work. Many office-based industries have been able to avoid some of the tougher issues so far, by implementing work-from-home pretty uniformly. That will most likely change once we get to the return-to-the-office phase of the pandemic.
Elena Davis: How can employers try to ensure adequate precautions and avoid workplace safety claims?
Doug Brayley: Well, as an initial matter, some courts have dismissed these types of claims on the ground that they are best handled by the Occupational Safety and Health Administration, or “OSHA.” That said, at least one court has sustained this sort of claim where it found “serious failures” in employee training on health and safety guidelines. So while these claims can sometimes go forward, adhering to the available federal health and safety guidance from OSHA (and from state health authorities) and ensuring that employees are trained on that guidance could go a long way in helping to avert or defend against any claims.
Elena Davis: You said earlier that workplace safety concerns are sometimes implicated in retaliatory termination cases. Can you tell us a little more about those cases?
Doug Brayley: Yes—we’ve seen several cases where an employee alleges that he or she was terminated in retaliation for raising a workplace safety issue. In one high-profile case, for example, an Amazon warehouse worker filed a lawsuit against Amazon, alleging a failure to take adequate safety precautions and that he had been terminated after organizing protests about safety-related issues. In that case, the worker was able to cite a leaked communication from Amazon’s general counsel to its CEO, in which the general counsel made some disparaging statements about the worker and suggested making him the “face” of all protests against the company.
Elena Davis: It seems like there is some lesson to be learned there….
Doug Brayley: There certainly is—namely, that employers should rely on (and document!) objective rationales when making termination decisions, particularly where an employee has raised COVID-related concerns. That’s not different from general best practices, but the Amazon case demonstrates the stakes.
Elena Davis: You mentioned the FFCRA earlier. What does the FFCRA require employers to do?
Doug Brayley: The FFCRA is a new law that was passed during the pandemic – it was one of the rounds of stimulus. It requires employers to provide sick leave or expanded paid leave for specified reasons related to COVID-19.
Elena Davis: Does the FFCRA apply to all employers?
Doug Brayley: That’s a good question. No, it applies only to certain employers with fewer than 500 employees. However, some local authorities have passed legislation requiring larger employers to provide similar benefits, and some smaller employers with under 50 employees may qualify for an exemption.
It’s also important to note that the FFCRA recently expired on December 31, but with the upcoming change in administration, some believe that it could be reinstated, in which case it will be important to ensure adequate training on the relevant requirements. Even if it’s not reinstated, employers could remain vulnerable to FFCRA claims for the next couple of years because of the relevant statute of limitations. So again, keeping that documentation of COVID-related leave requests will continue to be important.
Elena Davis: Speaking of upcoming changes, with the recent roll-out of COVID vaccines, is there anything else that employers should be thinking about over the next few months?
Doug Brayley: Employers will have a lot of decisions to make in the foreseeable future, but one big decision will be how to handle the subject of employee vaccination. Just recently, the Equal Employment Opportunity Commission, or “EEOC,” issued guidance stating that employers may, in certain circumstances, require their employees to receive the COVID-19 vaccine. Of course, this requirement still must be subject to certain legally protected exceptions, such as disability and sincerely held religious beliefs. But just because employers may require employees to receive the vaccine, doesn’t always mean they should, and the EEOC’s guidance still leaves many logistical questions unanswered.
Elena Davis: It will certainly be interesting to see where this all goes. Unfortunately, that’s all the time we have for today. Doug, I want to thank you for sharing these insights. For our listeners, please visit www.ropesgray.com for additional news and commentary about other important employment litigation developments as they arise. You can also subscribe and listen to the series wherever you regularly listen to podcasts, including on Apple, Google and Spotify. If you’d like to learn more about any of the topics we discussed today, or if we can help you navigate this complex and rapidly developing area of the law in a more tailored way, please do not hesitate to contact us.Thanks again for listening.