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How to Stem the Rise in COVID-19 Employment Suits

March 5, 2021
Employers also are dealing with threats of COVID-related union work stoppages. An EHS Today Intelligence exclusive.

ANALYSIS

The steady trickle of COVID-19-related lawsuits filed against manufacturing employers could turn into a flood this year, but companies can take steps to stem the tide before it reaches their shores, employment lawyers say.

“Nationwide, manufacturers have seen one to seven new COVID-19-related employment complaint filings a week since the beginning of April 2020. Such litigation is likely to continue to rise given the volume of filings,” offer attorneys Stephanie E. Lewis and Laura A. Ahrens of the Jackson Lewis law firm. “Keeping up with recent trends in COVID-19-related litigation can help manufacturers ensure compliance with the common bases of alleged violations.”

Since April 2020, more than 1,700 such lawsuits have been filed against employers, with the biggest numbers rung up by the healthcare and retail sectors, but the total also includes 150 COVID-19-related complaints lodged against manufacturers—almost 9% of the total. Among the states, California, Michigan, New Jersey, Ohio and Pennsylvania have seen the highest number of COVID-19-related litigation filings in federal and state courts.

More than 50% of these cases were filed in various state courts; the remainder were filed in federal courts nationwide. Roughly 95% of the claims have been brought by a single plaintiff, rather than by class or collective action. (In fact, a judge recently refused to certify a class in one such a suit.)

COVID-19-related litigation in the manufacturing industry generally falls into six categories, say Lewis and Ahrens:

  • Contract
  • Disability, leave and accommodation
  • Discrimination/harassment
  • Retaliation/whistleblower
  • Wage and hour
  • Workplace safety and conditions

Of these filings, nearly half fall under the Disability, Leave and Accommodation category. Common causes of action include alleged wrongful termination, or interference with rights under the Families First Coronavirus Response Act (FFCRA) or the Family and Medical Leave Act (FMLA).

In state courts, filings allege violations of the states’ discrimination laws stemming from their employees’ extended leave related to complications, underlying health conditions, or disabilities exacerbated by COVID-19. The filings against manufacturers have tended to involve FFCRA or FMLA allegations by single plaintiffs, the attorneys say.

The Discrimination/Harassment and Retaliation/Whistleblower categories also see a steady influx of complaints, roughly one-third of which were filed in federal court. Common causes of action for Discrimination/Harassment have alleged state and federal violations of discrimination or civil rights laws, such as terminating the employment of an older worker or a pregnant woman because they are members of a high-risk population.

Causes and Prevention

Common causes of action regarding Retaliation/Whistleblower filings have alleged retaliation for complaining about lack of safety measures in the workplace. “Significantly, even when not the primary allegation, Retaliation/Whistleblower claims frequently accompany Disability, Leave and Accommodation and Discrimination/Harassment complaints,” Lewis and Ahrens explain.

Manufacturers continue to see new COVID-19-related employment litigation filings weekly. The majority of cases are in the early stages of litigation and have not been dismissed or resolved at this time. A limited number of COVID-19-related cases were transferred to arbitration or settled between the parties and a small number voluntarily dismissed by the plaintiffs.

“Interestingly, the federal court in the Eastern District of Michigan granted defendants’ motions to dismiss in three separate cases upon the parties’ stipulation,” the attorneys point out. Each case included alleged wrongful termination or retaliation claims under the FFCRA or FMLA.

“It is unclear whether cases in the Disability, Leave and Accommodation category will be dismissed by courts in other jurisdictions as COVID-19 employment litigation affecting the manufacturing industry continues to develop,” they add.

Lewis and Ahrens advise, “As COVID-19-related employment litigation continues to surface and affect manufacturers throughout the United States, manufacturing employers should vigilantly stay current on relevant legal updates. Employers should review and comply with relevant employer responsibilities and employee rights under state and federal laws and regulations as the COVID-19 pandemic continues.”

The law firm of Fisher Phillips points out, “Employers in the manufacturing industry have emerged as a prime target of COVID-19 workplace litigation. Given recent trends, manufacturing employers everywhere should be aware of the lawsuits that may be coming in the states where they operate.”

The law firm offers manufacturers the following advice for erecting defenses against these kinds of suits:

  • Ensure front-line managers and human resources personnel are well-versed in all the new leave law requirements under federal, state and local law.
  • Regularly monitor and implement CDC, Occupational Safety and Health Administration and local guidances regarding appropriate COVID-19 workplace safety practices.
  • Train employees on appropriate COVID-19 safety procedures.
  • Update anti-retaliation policies to cover workplace safety and health issues.
  • In the event of a layoff or RIF, develop selection criteria that are objective and based on measurable data (i.e., production, performance metrics, etc.), and then conduct an adverse impact analysis to determine whether the criteria disproportionately impacts a protected category of individuals.

“Given the prevalence of claims filed against manufacturing employers, employers in this field should be particularly concerned about the chance of facing a COVID-19-related lawsuit,” Fisher Phillips says. “The good news is that by doing everything reasonably possible to keep your workers safe, you will also put yourself in the best position to avoid litigation.”

Unions Stir the Pot

Many employers have been dealing with threats of COVID-19-related work stoppages over the past several months. Most of these have involved public sector unions representing teachers who were challenging what they see as the unsafe and premature opening of schools in various districts across the country.

In the private sector, whether such strike activity is subject to no-strike clauses under the National Labor Relations Act or to mandatory bargaining and dispute resolution procedures under the Railway Labor Act (RLA) has been a question on unionized employers’ minds, note attorneys Molly Gabel and John L. Telford, Jr. of the Seyfarth Shaw law firm.

The answer is that such strikes are banned under the law, according to at least one federal district court. In late December it issued a temporary restraining order against the Brotherhood of Maintenance of Way Employees Division of the Teamsters union (BMWED) for a threatened strike against Union Pacific Railroad (UP).

Both of them had been engaged in collective bargaining since late 2019, with BMWED seeking increases in pay and additional paid time-off and they remained in talks at this time. During that time, UP implemented extensive COVID-19 safety protocols following CDC guidelines. The railroad also granted its employees an additional 14 days of paid leave for those directed to quarantine due to workplace exposure to the illness.

BMWED demanded more and because UP did not cede to all of its demands, the union told the railroad that it would declare a health and safety emergency because of the imminent threat to its members of serious injury or death, and call for a cessation of work if UP failed to take the necessary corrective actions.

UP took the union to court, and presented evidence showing that a strike would impact the transport of goods to critical industries and cause the company severe and irreparable financial loss. It also presented evidence of its extensive COVID-19 safety protocols and testimony from its chief medical officer about the effectiveness of those measures.

The court agreed with UP, finding that BMWED would violate that RLA if it engaged in the work stoppage and that the FRSA did not give the inion a free pass to engage in strike-related activity.

The court also held that even if the Federal Railroad Safety Act (FRSA) could be read to apply to strikes, the pandemic is not a work-specific safety concern for BMWED employees under that law.

“Instead, the pandemic is unfortunately a worldwide and widespread problem confronting not just the BMWED employees, but individuals of all walks of life,” the court stated. “Thus, it does not constitute a condition ‘related to the performance of employee’s duties’ for purposes of the FRSA.”

The court emphasized that because UP had implemented certain safety measures complying with federal guidance, “a reasonable individual under the circumstances would not conclude that there is ‘an imminent danger of death or serious injury’ presented by the current situation.”

About the Author

David Sparkman

David Sparkman is founding editor of ACWI Advance (www.acwi.org), the newsletter of the American Chain of Warehouses Inc. He also heads David Sparkman Consulting, a Washington D.C. area public relations and communications firm. Prior to these he was director of industry relations for the International Warehouse Logistics Association. Sparkman has also been a freelance writer, specializing in logistics and freight transportation. He has served as vice president of communications for the American Moving and Storage Association, director of communications for the National Private Truck Council, and for two decades with American Trucking Associations on its weekly newspaper, Transport Topics.

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