COVID-19 employment litigation: taking stock two years in

A man works at a desk in an office building in the City of London financial district, amid the coronavirus disease (COVID-19) in London, Britain, July 30, 2020. REUTERS/John Sibley/File Photo

August 1, 2022 - The COVID-19 pandemic led to an onslaught of novel employment-related litigation. Over the last roughly two years, lawsuits have followed from, among other issues, employers requiring on- and off-site health screenings, vaccinations and quarantining; employees seeking reimbursement of expenses for working from home; allegedly unlawfully deprived COVID-related accommodations; and workplace safety concerns.

Although courts are continuing to wrestle with these issues, multiple court decisions have started to provide employers some guidance.

Off-the-clock time

In an effort to keep workplaces free of COVID-19, both for the protection of employees and for the continuity of business operations, many employers required on-site, pre-shift health screenings. Litigation followed over whether non-exempt employees are entitled to compensation for this time, and to date courts have split on this issue.

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In California, one federal court held that time spent on pre-shift COVID-related screens was not compensable under the federal Fair Labor Standards Act because such activities were not "integral and indispensable" to the employee's so-called principal activities. (Pipich v. O'Reilly Auto Enterprises, LLC (S.D. Cal., Mar. 15, 2022, No. 21CV1120-L-LL) 2022 WL 788671).

By contrast, another federal court, also in California, concluded that because screenings were intended to prevent outbreaks that would disrupt business operations, this activity was indispensable to the employees' principal duties and therefore compensable time. (Boone v. Amazon.com Services, LLC (E.D. Cal. 2022) 562 F.Supp.3d 1103). Similar arguments are being addressed in other pending litigation, including at the 8th U.S. Circuit Court of Appeals. (Perez v. Walmart, Inc. (W.D. Mo., Oct. 25, 2021, No. 4:21-CV-00120-HFS)).

Employers also should note that the U.S. Department of Labor's guidance states that employees' time spent on required COVID tests or vaccines may be compensable depending on whether or not it occurs during normal working hours, or at the employer's direction on days off. (COVID-19 and the Fair Labor Standards Act Questions and Answers, U.S. Department of Labor).

Expense reimbursements for remote work

Courts have found that lawsuits alleging employees should be reimbursed the costs of equipment and utilities used while working from home during the pandemic present claims plausible enough to warrant further discovery.

For example, in a lawsuit that arose under California law, a federal court held that although local and state stay-at-home orders required remote work, and the employer was not the "but-for cause" of this shift to remote work, the plaintiff's claims for reimbursement were sufficient to plausibly allege liability under California law. (Williams v. Amazon.com Services LLC (N.D. Cal., June 1, 2022, No. 22-CV-01892-VC) 2022 WL 1769124.)

Disability and leave claims

COVID-related disability discrimination and leave-related cases have also arisen during the pandemic, including where employees claim they were terminated for testing positive for the virus, in violation of the Americans with Disabilities Act (ADA), the Families First Coronavirus Response Act (FFCRA) and other legal protections.

For example, in Brown v. Roanoke Rehabilitation & Healthcare Center, (No. 3:21-CV-00590-RAH, 2022 WL 532936 (M.D. Ala. Feb. 22, 2022)), a nurse who tested positive for COVID-19 alleged she was terminated on the 13th day of self-isolation because she refused to come to work to be re-tested by her employer. The court refused to dismiss this lawsuit, finding that, under these circumstances, COVID-19 could qualify as a disability under the ADA.

In another case, Matias v. Terrapin House, Inc., (No. 5:21-CV-02288, 2021 WL 4206759 (E.D. Pa. Sept. 16, 2021)), an employee alleged that after testing positive for COVID-19, she was terminated for requesting leave under the FFCRA. Her claims, too, survived a motion to dismiss.

These plaintiffs will still need to prove liability, but the courts' willingness to allow them to proceed suggests some viability to these theories.

Additionally, before the pandemic, courts often viewed requests to work from home as a reasonable accommodation under the ADA skeptically, deeming in-office work an essential function of employees' jobs. (See, e.g., E.E.O.C. v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015)). However, the pandemic has revealed that employees may successfully perform their jobs working remotely. Indeed, the Equal Employment Opportunity Commission ("EEOC") has stated that the ability to work from home during the pandemic should be considered in assessing the continued viability of remote work. (SeeEEOC Technical Assistance Questions and Answers).

As workplaces reopen for in-person work, employees also have claimed a need to continue to work remotely because of an underlying condition that puts them at risk of having a severe reaction to COVID-19, if exposed to the virus. In September 2021, the EEOC filed a lawsuit in a Georgia federal court on behalf of one such employee, alleging disability discrimination under the ADA after the employer refused to accommodate remote work. (SeeEEOC v. ISS Facility Services, Inc., No. 1:21-CV-3708-SCJ-RDC). This decision could be illustrative as to how employers should handle continued requests for remote work as a reasonable accommodation.

Wrongful death and injury claims

Lawsuits based on alleged workplace exposure to COVID-19 are a grave reminder of the consequences of potential transmission in the workplace. Employees and employees' decedents have filed negligence suits against employers alleging failure to implement adequate COVID-19 prevention protocols. However, these cases have faced uphill battles, especially because workers' compensation statutes typically bar employees from suing for illnesses contracted in the workplace.

To circumvent the workers' compensation bar, some employees' family members have brought "take home" COVID-19 cases against employers, based on employees contracting COVID-19 in the workplace and then transmitting the virus to their family. These claims have had mixed results.

In a case involving a woman suing her husband's employer, claiming under California law that she contracted COVID-19 from her husband's exposure to the virus at work, a court dismissed the case finding that the claims were barred by California's "derivative injury" doctrine, and the employer did not owe a duty to its employee's wife.

Notably, the California Supreme Court recently accepted an appeal to address whether companies can be held liable for not doing enough to stop COVID-19 from spreading to workers' households. (Kuciemba v. Victory Woodworks, Inc., 31 F.4th 1268 (9th Cir. 2022))

Negligence claims by employees and employees' family members also may be challenged by shield laws that have been passed in multiple states (such as in Texas and Tennessee) in various forms. Generally speaking, these statutes immunize employers from liability for employees contracting COVID-19 in the workplace, but the scope of these protections vary widely. Some states, including California, Delaware and Illinois, have refused to enact such legislation.

WARN Act claims

Employers also have faced claims under the federal Worker Adjustment and Retraining Notification Act, and state equivalents, arising out of mass layoffs during the early days of the pandemic. In June 2022, the 5th U.S. Circuit Court of Appeals found in favor of employees in one such case, ruling that COVID-19 did not fall under the "natural disaster" exemption from the layoff notification requirements under federal law (SeeEasom v. U.S.Well Servs., Inc., 37 F.4th 238 (5th Cir. 2022)).

Conclusion

Some two years after the start of the pandemic, the success of COVID-related claims remains to be seen as they continue to make their way through the courts. Employers should monitor these developments and, if necessary, based on emerging trends in these decisions, consider modifying their practices.

Gregory P. Abrams is a regular contributing columnist on employment law for Reuters Legal News and Westlaw Today.

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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Gregory P. Abrams is a partner in the Chicago office of Faegre Drinker Biddle & Reath LLP. He defends companies in all types of employment litigation and counsels employers on matters involving, among others, compliance with COVID-19 related obligations, covenants not to compete, wage and hour laws, drug and alcohol testing, employee discipline and termination, and criminal background checks. He can be reached at gregory.abrams@faegredrinker.com.

Caroline Guensberg is a labor and employment associate in Faegre Drinker Biddle & Reath LLP's San Francisco office. Her practice includes litigating employment-related matters, counseling employers on compliance with international, federal, and local laws, and conducting internal investigations. She can be reached at caroline.guensberg@faegredrinker.com.

Sara Ehsani-Nia is a labor and employment associate in Faegre Drinker Biddle & Reath LLP's Los Angeles office. She works with employers to ensure they are compliant with labor & employment laws including wage and hour laws, the Private Attorneys General Act, the Fair Employment and Housing Act, disability leave laws, the Equal Pay Act, fair credit reporting laws and local COVID-19 ordinances, among others. She also advises clients in the creation of employment policies, practices and procedures. She can be reached at sara.ehsaninia@faegredrinker.com.