COVID-Related Litigation on the Rise: Take Preventative Steps Now

September 17, 2020

Since the Shelter in Place orders started to relax earlier this summer, employers have been grappling with opening back up, bringing their employees safely back to work, and serving their clients and customers while socially distancing. From an employment law perspective, the questions from employers are plentiful:

• How do I set up my work space so my employees are social distancing and safe and the entire facility is properly sanitized?

• What if an employee does not want to return to work because of fear of contracting COVID-19?

• Am I still under obligation to comply with the Families First Coronavirus Response Act and provide paid sick leave or emergency family and medical leave?

• What steps do I take if an employee tests positive for COVID-19?

This is uncharted territory for employers and employees, and understandably there has been unawareness, confusion and/or misinterpretations of the law, employer obligations and employee rights. As a result, we are seeing a rise in COVID-related litigation. According to Littler-Mendelson's COVID-19 Labor and Employment Litigation Tracker, there have been 690 COVID 19-related lawsuits nationwide between March 12, 2020 and September 11, 2020, with a steep increase in the past few months. California leads the pack with 128 such lawsuits. Employees are filing lawsuits against their employer on issues such as alleged failure to implement COVID-19 safety precautions, denial of reasonable accommodations for employees with disabilities, and lack of proper notice prior to a mass layoff.

Here are a few steps and resources to help employers who have opened back up:

1. Review and Implement the Guidance Provided by the State of California. Many California governmental agencies have issued guidance for employers - Cal/OSHA, Employment and Development Department (EDD), Department of Industrial Relations, and the Department of Public Health. Here are links to a select few publications that are particularly helpful for employers:

• COVID-19 Employer Playbook

• Industry-Specific Guidance and Checklists

• EDD COVID-19 Employer Resources

2. Know Your Employer Obligations Under COVID-specific Employment Laws. For example, the federal Families First Coronavirus Response Act (FFCRA) is still in effect until December 31, 2020. As schools have recently started again - primarily through distance learning models - employers are wondering about their obligations under the FFCRA to provide paid sick leave and extended family and medical leave to employees whose children are home due to schools not being physically open. Very recently, the DOL answered questions related to this issue (See questions 98, 99 and 100). Furthermore, several cities, including San Francisco and Los Angeles counties, have issued additional COVID-19 paid sick leave obligations for large employers with 500 or more employees (California just passed a similar statewide law, AB 1867, that becomes effective on September 19, 2020).

3. Develop and Document Company COVID-19 Related Policies. All California employers are required to establish and implement a written Injury and Illness Prevention Program (IIPP) to protect employees from workplace hazards, including infectious diseases. Employers should amend their IIPP at this time to include information about the workplace's COVID-19 infection prevention measures (i.e. PPE requirements, cleaning and sanitization protocols, social distancing) and employee training on how to prevent the spread of COVID-19. Other policies to consider creating and/or updating are those related to rights afforded under the FFCRA, guidelines for working remotely, and entitlement and processes for business expense reimbursements for remote workers.

You are always free to contact Shivani Sutaria Law Offices to discuss your specific situation and obtain legal advice.