Is COVID-19 Amplifying Employment Litigation?

The quick answer is “yes” — there are far more employment lawsuits today than compared to a year ago. Since March, the number of new lawsuits has steadily climbed. Industry analysts expect this trend to continue for some time, especially if the U.S. fails to offer a meaningful vaccination or implement universal preventative measures. Pro bono lawyers are having a difficult time keeping up with the needs of low-income communities around the country, but they’re doing their best.

Coronavirus has everyone somewhat anxious about the future. Some have lost their jobs already. Some are still employed, but at increased risk because they were deemed “essential.” And some are at increased risk of infection due to other factors like age or underlying conditions such as diabetes and heart disease. Some have family members who fought and succumbed to the disease coronavirus causes, COVID-19.

The number of lawsuits is skyrocketing for at least three reasons. One, most essential workers never received any hazard pay, even though they’re the ones taking the biggest risk. They’re also effectively making less money than some people who lost their jobs in March and April but were able to get on unemployment. Two, many employers have been accused of failing to follow CDC guidelines on how to reduce the opportunity for coronavirus to propagate in a workplace. Three, employees have new rights because of new laws passed. Not all employers have had an easy time implementing the needed changes in the workplace. Workers aren’t happy.

There are a number of reasons a worker might make that fateful call to an employment lawyer.

One is FMLA interference. FMLA is time off thanks to the Family and Medical Leave Act. Employers who do not approve FMLA leave when an employee has shown symptoms of coronavirus and/or been asked by his or her doctor to quarantine are subject to extreme litigation. One woman in Kentucky claimed that she was fired after requesting the leave in Hockersmith v. Elmcroft.

One of the most classic reasons for employment litigation is becoming more popular in the age of coronavirus: retaliation. When one plaintiff was denied medical leave (which would have been covered by workers’ comp) in Castaneda v. Niagara Bottling LLC, he complained about the lackluster coronavirus safety measures and was subsequently terminated. 

Another possible reason to sue is breach of contract. In Kalsey v. Dialsource, Inc., one contracted worker was fired when the contractor’s financial situation changed due to COVID-19. The employer offered a severance package, but the contracted employee turned it down as breach of contract. The employer still fired the contracted employee — but this time the reason was “for cause.” Allegedly, there was none. 

Lastly, discrimination cases are also on the rise. Perhaps this is because employers feel they can get away with more in the Trump era, or perhaps they think everyone is too concerned with coronavirus to notice. That’s not the case, and new lawsuits are pouring in everyday.