COVID-19 Employment Litigation Trends Update: Part I

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Employees continue to file COVID-19-related lawsuits against their employers at a rapid clip. In July, we identified five categories of cases that seemed to be driving COVID-19 employment litigation: (1) alleged failure to provide a safe working environment; (2) discrimination claims, especially relating to disability and age; (3) leave claims under the FMLA and the patchwork of federal, state and local laws enacted to deal with the pandemic; (4) retaliation and whistleblower claims, usually attached to either a workplace safety or leave issue; and (5) wage and hour lawsuits arising out of the pandemics’ impact on business operations.

Of those, claims relating to a safe working environment and medical/quarantine leave, including retaliation for exercising leave rights, appear to constitute most of the case filings. Discrimination claims also make up a significant block of this type of litigation. Wage and hour claims continue to be filed at their usual breakneck pace, but so far there does not appear to be a dominant COVID-related theory that threatens to drive wage and hour cases in a significantly different direction. This article addresses developments in the law regarding claims that are based on employers’ alleged inability or unwillingness to provide a safe working environment and leave and retaliation claims. Future updates will address other case theories.

The legal theories under which those cases are brought have not changed dramatically over the past few months. The major trends that we identified in July remain the core of the legal theories pursued by plaintiffs. But we are now finally starting to see some significant substantive decisions trickle in from the federal courts regarding those theories. Because the cases are still at a relatively early stage, most of those decisions were decided at either a motion to dismiss stage, or even earlier in rulings on preliminary injunctions or temporary restraining orders. Nevertheless, those cases reveal critical early information about how other similar cases are likely to proceed and the risks they pose to employers.

Early Decisions Relating To A Safe Working Environment

Perhaps unsurprisingly, workplace safety issues continue to dominate COVID-related litigation. Most of those cases allege theories of either constructive discharge due to an employer’s failure to implement safety measures deemed critical to the complaining employee, or retaliation as a result of complaining about inadequate safety measures. Initial decisions have tended to highlight the difficulties that employees may have in making those claims stick. So far, in the federal courts at least, judges seem hesitant to impose their view of proper safety measures on employers in light of the “fog of ignorance” that prevailed during the early stages of the pandemic, and the seemingly ever-shifting safety guidelines from federal and state authorities.

This was the conclusion in two very early cases decided under a preliminary injunction standard. In Rural Community Workers Alliance v. Smithfield Foods, Inc., No. 5:20-CV-60603-DGK, 2020 WL 2145350 (W.D. Mo. May 5, 2020), a group of meat plant workers and an organization representing those workers sought a preliminary injunction that would force a meat processing employer to take various measures to protect workers against COVID-19, including providing masks, ensuring social distancing, giving workers access to testing, and instituting a contact-tracing policy, among other things. The court held that plaintiffs had not shown a sufficient threat of irreparable harm because the threat of possibly contracting COVID-19 was too speculative an injury given that its spread at the plant was not inevitable. The court also noted that an injunction could hamstring the employer as it tries to adjust its policies in the face of ever-evolving national and local guidance and the changing circumstances of the pandemic.

Similarly, in New York State Nurses Association v. Montefiore Medical Center, No. 20-CV-3122 (JMF), 2020 WL 2097627 (S.D.N.Y. May 1, 2020), the court denied a nurses’ union’s request for a preliminary injunction to force a private hospital to take steps to protect nurses from COVID-19, including increased availability of personal protective equipment, on-demand testing, and other things. The court held that such an injunction “would ‘unduly interfere’ with the hospital's ‘ability to make business decisions’ at a time when the judicial interference could be particularly problematic.” Id. at *3 (quoting Niagara Hooker Emps. Union v. Occidental Chem. Corp., 935 F.2d 1370, 1378 (2d Cir. 1991)).

However, the novelty of the COVID-19 pandemic cut against an employer in another recent decision involving a constructive discharge allegation. In Brooks v. Corecivic of Tennessee LLC, No. 20-CV-994 DMS (JLB), 2020 WL 5294616 (S.D. Cal. Sept. 4, 2020), a former employee of a private operator of a correctional facility alleged that she had been compelled to resign from her position because of her employer’s failure to maintain a safe working environment. Her claims were brought under California law as wrongful constructive termination in violation of public policy, negligent supervision, and intentional infliction of emotional distress. (Diversity jurisdiction supplied jurisdiction to the federal court.)

The court allowed the claim to proceed and denied an early motion to dismiss because any determination as to the reasonableness of the correctional facility’s safety efforts would be inherently fact-bound given the ever-shifting nature of the country’s pandemic response: “Given the novelty of the coronavirus at the time of Plaintiff's resignation, scientists and medical professionals were struggling to provide clear guidance on how best to protect against it. As a result, the guidance provided at local, state and national levels by appropriate medical authorities and political leaders was confusing, if not conflicting, at times, and rapidly evolving.” Id. at *5. Accordingly, the timing of various recommendations by state and federal health agencies and how they were implemented by the employer were therefore critical facts that would have to be determined to decide the plaintiff’s constructive discharge claim, ultimately rendering the claim inappropriate for a motion to dismiss. Id.

Early Decisions Relating to Leave And Retaliation Claims

Early decisions relating to leave and retaliation issues have tended to focus on untangling the alphabet soup of pandemic-relief legislation that was overlaid on top of other federal employment statutes. The interplay among those statutes can sometimes lead to surprising results. For example, in Gomes v. Steere House, No. 20-CV-270-JJM-PAS, 2020 WL 6397930 (D.R.I. Nov. 2, 2020), the court held that an employee could maintain an FMLA retaliation claim based on her request for leave under that statute, even though she would not have been eligible for those benefits because her leave claim resided under a different statute. In that case, a Licensed Practical Nurse alleged that she was terminated from her employment at a nursing and rehabilitation center in retaliation for invoking her rights under the FMLA. Her employer argued that she was not entitled to leave under the FMLA or the Emergency Family and Medical Leave Act, which amended the FMLA to provide paid leave for employees who need to care for children who become sick with COVID-19. Id. At issue was whether the plaintiff had availed herself of a protected right under the FMLA.

The Court held that she had not. The Court explained that the Families First Coronavirus Response Act (“FFCRA”) contains two separate laws that provide distinct leave rights. The Emergency Paid Sick Leave Act (“EPSLA”) does not amend any existing statute, and its enforcement provisions are tied to the Fair Labor Standards Act (“FLSA”), rather than the FMLA. Id. at *2. The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) does amend the FMLA to provide leave rights to employees who are unable to work because they need to take care of a child whose school is closed or whose regular child care provider is unavailable. Id. Notably, however, those rights do not include provisions for employees who contract COVID-19 themselves. Because the plaintiff was seeking leave due to her own infection, she was actually trying to avail herself of rights under the EPSLA, which is enforced under the FLSA, and not the FMLA. Accordingly, the court concluded: “[b]ecause, as stated, the EPSLA has no connection to the FMLA and because [plaintiff] does not state any facts suggesting that she was qualified for FMLA leave under the EFMLEA, it is apparent that she did not qualify for FMLA benefits.” Id.

This did not end the issue, however, because under First Circuit precedent it is not necessary that a person must be entitled to FMLA benefits in order to state a claim for retaliation. According to the First Circuit, firing an employee just for asking about benefits would frustrate the purpose of the statute, regardless of whether the employee would actually be eligible for those benefits. Viewed in that light, and even though the plaintiff was not technically covered by the FMLA, the court refused to dismiss plaintiff’s complaint, holding that the complaint adequately pled that she was terminated because she had asked for FMLA leave. Id.

In Kofler v. Sayde Steeves Cleaning Service, Inc., No. 8:20-CV-1460-T-33AEP, 2020 WL 5016902 (M.D. Fla. Aug. 25, 2020), a residential and commercial cleaner requested two weeks of unpaid leave under the FFCRA to care for her two children who had to stay home due to the pandemic. Her employer did not respond to that request, but shortly thereafter terminated her employment. She sued, alleging retaliation. The court first held that the employee had stated a claim for retaliation under the FLSA, noting that “Under the FFCRA, ‘An Employer who discharges, disciplines, or discriminates against an Employee in the manner described in subsection (a) is considered to have violated section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), and shall be subject to the enforcement provisions relevant to such violations set forth in sections 16 and 17 of the FLSA, 29 U.S.C. 216, 217.’” Id. at *2 (quoting 29 C.F.R. § 826.150(b)(2)). The court also held that the employee’s claim for retaliation brought directly under the FFCRA could go forward. Although there is an exemption from provisions of the FFCRA for certain small employers (fewer than 50 employees), it is not a blanket exemption. Rather, an employer must document that it has determined that the requested leave would cause severe financial hardship on the business according to the criteria set forth in the FFCRA. Id. Since this is a fact-specific inquiry, the Court held that it was not a determination that could be made at the motion to dismiss stage. Id. at *4.

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As the above cases illustrate, COVID-19 is raising some novel legal issues relating to the interpretation of both old and new statutes. The federal courts are only just beginning to untangle what this will mean for employers trying their best to make difficult decisions during this pandemic.

We fervently hope that COVID-19 will be beaten soon; there are certainly some encouraging signs in that direction. But lawsuits arising out of the pandemic have shown no sign of stopping, and many are only now picking up speed. Those will probably be with us for years to come, even after the virus dies away. We will continue to monitor case filings and significant decisions to analyze trends and share our insights and analysis with the employer community.