Employers should expect more time in the courtroom over litigation around COVID-19, attorneys say, now that the pandemic is entering the “back-to-work-in-the-office” phase. OSHA claims over unsafe workplaces, in particular, will see an “incredible uptick,” said Dorsey attorney Melissa Raphan, as will complaints around vaccine requirements and health information privacy.
Littler Mendelson just posted numbers on the COVID-19 litigation front. Since March 12, 2020 and as of April 9, 2021, 2,193 lawsuits (including 179 class actions) have been filed against employers due to alleged labor and employment violations related to the coronavirus.
States with the most filings include California (550); New Jersey (261); Florida (174); New York (168); and Ohio (124). Industries with the most filings are: healthcare (533 cases); manufacturing (248); retail (206); public administration (188) and hospitality (159), according to Littler, the labor and employment law firm with more than 1,600 attorneys in 90 offices.
Attorneys at Minneapolis-based law firm Dorsey expect more litigation as employers prepare back-to-the-office plans, they said on a webinar today, including at the EEOC or Equal Employment Opportunity Commission.
“When the kids go back to school, the charges are going to go up,”said Raphan, the Dorsey attorney who moderated the panel. “People have been distracted. I think in 2022 we’ll see a huge uptick.”
Trevor Brown outlined key pitfalls for employers to watch—disability discrimination and retaliation—based on EEOC complaints over the last four years, including all of 2020.
The number of complaints at the EEOC in 2020, 67,000, “is the lowest we’ve seen in two decades,” and the number of claims over race, sex and age discrimination is holding steady.
But two areas are ticking upward. “The key takeaway here is employees are most concerned about disability discrimination, and most concerned about retaliation, and that’s only going to continue,” he said. “Those are the key areas of risk.”
Raphan predicted a spike in OSHA claims and litigation over unsafe working conditions. Attorney and panelist Marilyn Clark seconded that thought, and said the majority of OSHA complaints included insufficient workplace cleaning and sanitization; lack of site planning and enforcement of rules to ensure safety; and perhaps a lesser known complaint: “failure to provide employees with safety data sheets about new chemicals introduced into the workplace.”
Jack Sullivan, another Dorsey attorney and panelist, notes employees will have new expectations about what kind of work can be done from home. Pre-COVID, “we worked on a case that involved an IT manager who argued that he should be allowed to work from home as an accommodation for a disability that he claimed to have,” Sullivan said, adding the company strongly stated his type of work was not possible at home. “There is a lot of work that we used to think could not be done from home, that obviously can be done from home. There is going to be a very different argument and a different set of facts.”
Sullivan’s most urgent warnings were around requiring employees to get vaccines, and keeping their health information private. “We’ve all heard about the EEOC guidance about whether employers may mandate vaccination. It’s a question that on one hand the answer is, yes you can, and a much more complicated answer, do you really want to?” he said, adding one thing is clear: “The announcement to anyone of any employee’s medical information, vaccine status, is something certainly to avoid.”
A recent Pew Research survey of 350 CEOs, HR and finance leaders said 70 percent expected to have employees back in buildings by this fall, but how many employees will be back and how often they’re spending their time at their office “is an entirely different question,” said Sullivan.
Among companies announcing a permanent remote or hybrid model are Target, Coinbase, Dropbox, Facebook, Ford Motor Co., Google, Reddit and more, he said. “Google has a September 1 return, but employees will be in the office three days a week; two days a week at home.”
Sullivan noted a “demand and expectation that exists among the workforce,” citing the Pew survey that said “about half of employees are wanting to work from home permanently, and about half of employees believe they will be allowed to do so,” with even higher percentages in tech, finance and media.
“On the employer side, a Cushman & Wakefield survey indicated that about 8 in 10 employers anticipate some sort of work-from-home model,” he said.