Employment Lawsuit Trends During the COVID-19 Economy

Employment Lawsuit Trends During the COVID-19 Economy

Society has been upended due to the COVID-19 pandemic and efforts to control it. An estimated 14 million Americans lost their jobs so far this year. In addition to the split in the economy of those with and without jobs, there’s a divide between those working from home and those who are not. Employment has never been more in flux and uncertainties can result in lawsuits.

Jim Swartz, a partner with the law firm of Seyfarth Shaw LLP in its Atlanta office, discussed the emerging trends in COVID-19-related employment lawsuits with Supply Chain Brains. Swartz said the increases in cases he’s seen include:

  • Cases concerning the working environment and employees claiming their workplace is unsafe due to potential COVID-19 exposure
  • Failure to accommodate a disability or a COVID-19-related absence
  • Discrimination allegations, including age claims
  • Wage and hour claims related to the fact employers are doing things differently. The fact employees are working from home has brought up a number of legal issues

Employees claiming they’ve become infected, according to Swartz, are on a difficult road, usually starting in state courts with more liberal pleading standards. They’re negligence and wrongful death cases where proving causation and showing it was reasonably foreseeable employees might become exposed will be difficult.

Swartz also said employer compliance with government rules and standards would make these cases harder to prove. “Most employers we’re seeing are taking pretty extraordinary measures to make sure that their workers feel safe and comfortable in the workplace. Certainly, I think a lot of them would be erring on the side of safety.”

He stated age discrimination claims were covered in an Equal Employment Opportunity Commission (EEOC) guidance because of concern employers might not allow older employees, who may be more likely to suffer severe side effects of an infection, to work due to potential virus exposure.

“What the EEOC was cautioning about was not to make blanket rules about older workers and whether or not they can work under the same circumstances as younger workers, because that could potentially, in the eyes of the EEOC, lead to situations where older workers are deprived of opportunities to be promoted and have certain job assignments. That’s the types of claims that we are focused on here.”

COVID-19-related litigation is at a very early stage, possibly years before there are jury trials. “It will be a fascinating area to explore as we go along. When you think about juries, they tend to relate to things that happen to them in their lives. When you’re picking a jury, one of the things you’re trying to identify is their life experiences and what they know. Like it or not, I think one thing that has emerged from this pandemic is that everybody’s a quasi-expert about it.”

Swartz said juries will be familiar with the challenges employers and employees face. Their beliefs may be affected by whether:

  • They live in an urban or rural area
  • Their area saw significant outbreaks or not
  • The virus has personally impacted them

I practiced law for 16 years. Most of that time, one way or another, was spent on employment law cases and issues. If you or your law firm want content related to employment law, or another legal area, please contact me today so we can talk about what you need and how I can help.