A majority of the claims involve an allegation of wrongful termination.
Well over two thousand employment liability claims have been filed as of April 2021 since the beginning of the pandemic. Most claims involve disability leave, accommodation, discrimination/harassment, retaliation/ whistleblowing, and wage and hour claims, according to the COVID-19 Employment LitWatch from Jackson Lewis, P.C.
LitWatch also points out that, “based on our review of COVID-19-related labor and employment complaints …, an overwhelming majority (approximately two-thirds) of complaints involve an allegation of wrongful termination. Typically, each of these complaints contains an underlying claim that led to the employee’s termination. For example, an employee requesting an accommodation.”
“Initially, COVID-19 presented little that was different from a typical employment practice liability (EPL) claim. One of the first claims was a woman whose coworkers were accusing her of having COVID-19. But that was not the case and she was being treated differently based upon this perceived disability”. That stated by LitWatch’s Martin Aron and Karl Weisheit of Lowers Forensics International in an article that appeared in Property-Casualty 360.
That claim did not mature but subsequently, according to the authors, COVID-19 claims have become more troublesome. For instance:
- A physician at a chain of pediatric clinics was allegedly terminated in retaliation for complaining that the personal protective equipment (PPE) the clinic was providing was insufficient.
- A hospital psychiatrist with several COVID-19 risk factors was terminated after his request to “tele-doc” his hospital patients was denied, and he refused to go onsite.
- Several nursing home employees had similar claims, refusing to come into work for lack of adequate protection and then were terminated.”
There have also been allegations of discrimination based on COVID-19-related risks. Such as a claimant who lived with an immunocompromised parent. To prevent putting the parent at risk, the claimant requested to work from home. The request was denied, and the employee terminated for not coming into work.
HR Department: Your Best Line of Defense
Issues related to accommodations, paid and unpaid leave, as well as retaliation and whistleblower issues, all present the potential for claims arising from COVID-19. It’s important for Human Resources departments to keep up to date and trained to deal with these kinds of issues.
Accommodations for workers are not always required by law. For example the caretaker who lived with an immunocompromised parent. Most companies largely want to “do the right thing”. This approach can go a long way to avoid potential workplace issues.
Also, recent amendments to the Family Medical Leave Act, the Families First Coronavirus Act, and a myriad of state executive orders have imposed new requirements for how companies operate during a pandemic. These changes significantly expanded paid leave, enhanced protections against workplace retaliation, and provided other mechanisms designed to support employees. It’s important for HR departments to keep up to date. “Failure to understand the impact of COVID-19-related laws and regulations and their interplay with one another can create internal disputes. Of which tend to mature into claims,” according to Aron and Weisheit.
Some Good News Anyway
In an interesting footnote to the rise in COVID-19-related employment liability claims, there has been a reduction in other types of employment liability claims. The “Special Report: Impacts of COVID-19 on Employment Litigation in Federal Court” (October 2020) by Lex Machina reports significant decreases where mass layoffs and the shift to work at home have reduced workplace contact. The authors report a 12% decrease in federal employment cases from 2019. This is a 16% decrease compared to the average number of filings from 2010-2019.
- Significant decreases in harassment (-22%), Americans with Disabilities Act (-20%), and discrimination (-17%) from 2019.
- Approximately 2,000 fewer cases were closed in 2020 than 2019, reflecting the dramatic slowdown in court activity during the pandemic.
If you have questions about employment practices liability insurance, contact BPJ today. We are here to help!