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  • Writer's pictureStephanie B. Hoffmann

Hindsight is 2020: Workplace Litigation During the Pandemic

Employers were hit hard in 2020, not only with government-mandated closings and the growing risk of infection, but also with the heightened potential for employment law violations. New state and federal protections were implemented for workers impacted by COVID-19, with little initial guidance. Existing protections, such as notification requirements for mass layoffs and closings, disability discrimination and accommodations and family and medical leave were placed in a new light. Even businesses with robust compliance systems in place were tested against the onslaught of new legal obligations created in 2020.

New York was one of the states with the highest number of pandemic-related employment law filings in 2020. Smaller businesses, with under 500 employees, accounted for over half of the COVID-related employment lawsuits. Industries with in-person interactions, such as healthcare, manufacturing, construction and education saw the largest number of employment disputes. Pandemic-related claims in New York primarily consisted of workplace safety and whistleblower issues, claims of retaliation for pandemic-related leave, allegations of disability discrimination and wage and hour disputes over sick pay.

One of the largest concerns for many employers was creating a safe workplace during a pandemic. The Occupational Safety and Health Administration (OSHA) promulgated safety and health standards and regulations which focus “on the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE).” The safety requirements varied by industry and risk-level and suggestions included ventilation, air filters, COVID-19 related training, minimizing contact, workplace flexibility and providing resources to encourage personal hygiene. Mandatory vaccinations are not currently an OSHA requirement, although according administrative guidelines they can be mandated by employers with a few exceptions for medical and religious accommodations.

The court in Palmer et al. v. Inc. et al., deferred to OSHA’s expertise and held that it was the role of OSHA, not the courts, to determine whether an employer adequately protected the safety of its workers from COVID-19. The decision noted that “courts are not expert in public health or workplace safety matters, and lack the training, expertise, and resources to oversee compliance with evolving industry guidance” and that judicial interference risked potentially costly

“inconsistent rulings . . . in a time of economic crisis.”

The Amazon workers are in the process of appealing the order. Various health care workers and police officers have also filed complaints about workplace safety. Recently, the Monroe’s County Sheriff’s Office was sued after asking a candidate for promotion to remove his mask during an in-person testing exercise.

The Palmer case also showcased some novel pandemic-related wage and hour issues. In response to COVID-19, federal and state governments enacted the Families First Coronavirus Response Act (FFCRA) and related New York State COVID Emergency Paid Sick Leave (NEPSL), which provided paid sick leave and enhanced family and medical leave. The court also held that COVID-19 paid sick leave was not considered “wages” under the New York Labor Law, and thus not subject to New York’s timely pay requirements. Although FFCRA expired at the end of 2020, employers who wish to receive tax credits for their employees’ family and medical leave must follow the requirements through March 2021. Additionally, NEPSL protections currently have no expiration dates. Therefore, both laws may continue to be a source of COVID-19 related litigation.

Numerous cases are still pending in court concerning disability discrimination and whistleblower retaliation claims. For instance, in September 2020, a worker for Chefs’ Warehouse, Inc. filed a lawsuit claiming that his employer interfered with his Family and Medical Leave Act rights and discriminated against his COVID-19 related disability. In the complaint, the employee alleges that he was terminated after he informed his employer that he tested positive for COVID-19 and his doctor recommended an additional week of quarantine. In Taidgh Barron v. New York Post and News Corp., a New York Post staff photographer filed a retaliation claim under New York’s whistleblower act. He alleged he was fired five months after he requested PPE for himself and other New York Post staff. A spokesperson for the New York Post stated that the decision to terminate Barron’s employment was a financial one and the allegations of an unsafe workplace environment were false because all staff who requested PPE were given it as soon as possible. Similarly, an auto sales manager alleged that he was retaliated against under New York’s whistleblower law because he emailed them to inform them that they violated the government-mandated stay-at-home order and was subsequently not rehired after a company-wide furlough. In response to many of these claims, the employers cite economic issues and financial struggles as the reason for termination, unrelated to any alleged complaint or leave by the employee.

Another potential source of litigation related to COVID-19 is the requirements under New York State’s Worker Adjustment and Retraining Notification (WARN) act and the corresponding federal statute. Under New York State’s WARN Act, employees are entitled to 90-days’ notice for plant closing or massive layoffs. New York did not suspend the requirement because

“the WARN Act already recognizes that businesses cannot predict sudden and unexpected circumstances beyond an employer’s control, such as government-mandated closures, the loss of your workforce due to school closings, or other specific circumstances due to the coronavirus pandemic.”

New York provided only a narrow exception for second round layoffs and recently amended the act to require additional notifications to local school districts and emergency services. At least one case involving an employment contract and the WARN Act was filed in state court in 2020, with others potentially to follow if layoffs continue.

Despite the workplace complications arising out of the pandemic, available data shows a general decrease in the amount of employment law court and administrative filings compared to past years. With current unemployment rates, the filing of general employment lawsuits may remain fairly low compared to previous years. On the other hand—especially as a new strain of COVID-19 sweeps through New York—it is likely that COVID-19-related employment litigation will be on the rise.

If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here or at (585) 258-2814.

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