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HR Braces for Onslaught Of Coronavirus-Related Lawsuits

Employers are expecting an avalanche of workplace lawsuits stemming from Covid-19.

justice 2071539 640 smallWhile federal and state courts have seen 283 coronavirus-related suits through June 30, 122 of these (43%) were from June alone. That's according to Atlanta-based law firm Fisher Phillips, which cites data from its Covid-19 Employment Litigation Tracker. That June surge signifies a large increase in lawsuits between employees and employers.

The firm’s employment litigation tracker spotlights legal actions that directly resulted from the pandemic between traditional employees and employers and includes individual and class-action lawsuits. The key takeaway for employers is to proactively address potential problems before they devolve into lawsuits, Fisher Phillips notes.

Of the 283 suits tracked by Fisher Phillips, there were 41 class action suits filed against employers since the start of the pandemic. Of that number, 16 were filed in June. Overall, the two Covid-19 claims that have been made the most against employers are employment discrimination and work-from-home/leave claims.

“Of the 63 pandemic-related discrimination claims, many of them sound like classic workplace disputes wrapped in a COVID-19 context,” Fisher Phillips notes in its legal alert. “Some examples include a gender discrimination claim where a pregnant woman claims she was furloughed due to the pandemic but was replaced by a non-pregnant individual; a disability discrimination claim where an employee was forced to reveal a multiple sclerosis diagnosis to justify accommodation requests and was then subsequently terminated; a sexual harassment claim where the employee claims the employer used the pandemic as a cover story to terminate her employment while the real reason was that she refused her boss’s sexual advances; and a worker who was sent home with flu-like symptoms but still terminated even after he presented a negative COVID-19 test result.”

The work-from-home/leave suits generally deal with employees saying they were denied time off from work even when such leave was warranted and in line with the Families First Coronavirus Response Act (FFCRA). “The employees have myriad reasons for wanting to work from home or take time off work, whether it is their own vulnerable status due to medical condition or age, their caring for a close family member with a vulnerable condition, a possible diagnosis with COVID-19 or an instruction to self-quarantine for a period of time, or a childcare issue or similar family arrangement,” according to the legal alert.

The top states for Covid-19 related suits through June 30 were California, 47, Florida, 32, New Jersey, 31, New York, 21, and Texas, 19.

In a California lawsuit filed in June, Drisana Rios alleges that her employer, Hub International, discriminated against her based on gender, engaged in retaliation and wrongfully terminated the 35-year-old San Diego woman, The New York Times reports. Rios started working remotely for the global insurance brokerage from home in March, where she also had to take care of her 4-year-old daughter and 1-year-old son.

“I continued my normal duties as an account executive but now added two young children to the mix,” Rios said in a statement. “It was extremely difficult, but I managed to meet all the deadlines. There was some days where I had to work late to meet rush deadlines or any duties I couldn’t finish during the day because I had to care for both of my young kids at the same time.”

Rios alleges that instead of coming up with a reasonable work schedule, her supervisor assigned her non-urgent tasks with quick deadlines. After she asked for calls to be made in the afternoon with her supervisor, a time when her youngest napped, the supervisor “continued scheduling calls during lunch times, when Plaintiff was feeding her children, nursing or putting her child down for a nap,” according to the complaint.

Rios’s supervisors chided her as being “unprofessional” when her kids could be heard in the background during calls with clients, she told ABC’s Good Morning America. Rios also alleges that her supervisor made “sexist statements” and was “motivated by a clear bias against mothers,” her complaint notes.

Shortly after complaining several times to human resources, Rios said the company dismissed her June 2 and blamed it on poor revenues due to the pandemic.

Hub International would not comment specifically on Rios, but a spokeswoman said that “while we can’t comment on pending litigation, Hub is proud to have successfully transitioned 90% of its 12,000-plus employees to working remotely from home throughout the Covid-19 pandemic.”

Employers should gear up for a lot of coronavirus-related lawsuits and claims from workers who became infected or were laid-off as well as the family of workers who passed away, Society for Human Resource Management reports citing employment lawyers.

"Given the uncertainty about whether workers' compensation will apply to COVID-19-related illnesses, it is important for employers to do all they can to limit potential liability," says Jenifer Bologna, an attorney with White Plains, NY-based Jackson Lewis.

Employers' best bet is to abide by guidance from the U.S. Centers for Disease Control and Prevention, state and local health departments, and the Occupational Safety and Health Administration, Bologna adds. Employers who lack sufficient communicable-illness policies and response protocols could raise the prospects of HR-related legal problems, Peter Susser and Tahl Tyson write for Harvard Business Review.

Susser is a partner at Washington, D.C.-based global employment and labor law firm, Littler Mendelson. Tyson is a partner at the law firm and based in Seattle, Washington. Susser and Tyson lay out eight steps employers can take to be proactive including staying informed, stepping up communication and hygiene protection measures, protecting workers’ privacy when it comes to health and preparing for a worse case scenario.

“The good news is that with careful attention to employee safety and legal preparedness, employers can minimize employees’ risk of infection and their own legal risks,” Susser and Tyson write.

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