COVID-19 Employment Litigation Trends Update: Part II

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As we reported earlier this month (see here), our ongoing tracking of COVID-19 employment litigation trends shows that the types of lawsuits employees are filing against their employers continue to fall within the same basic categories that we reported on in July (see here). Part I of this update series provided a summary of case law developments relating to employers’ alleged inability or unwillingness to provide a safe working environment, and leave and retaliation claims. In this post, we address case law developments involving discrimination and reasonable accommodation claims, as well as a brief look at how COVID-19 could impact wage and hour lawsuits.

Early Decisions Involving Discrimination and Reasonable Accommodations

The COVID-19 virus is especially dangerous to individuals with many types of pre-existing conditions. Many COVID-related case filings have alleged discrimination based on an employer’s refusal to provide reasonable accommodations to employees who have pre-existing disabilities that make them more vulnerable to the virus, or who live with people who have such conditions.

For example, in Bess v. District of Columbia, No. 19-CV-3152 (JEB), 2020 WL 4530581 (D.D.C. Aug. 6, 2020), an employee with the District of Columbia Department of Corrections who was a “class member and active participant” in an ongoing class action lawsuit against the Department alleging systemic sex discrimination sought to amend her complaint to add allegations of retaliatory conduct stemming from the Department’s alleged failure to provide a reasonable accommodation to protect her from COVID transmission. The plaintiff alleged that she suffered from diabetes, which put her at greater risk of severe symptoms and complications from COVID, but that the Department had repeatedly assigned her to medical and quarantine units that housed inmates who were suspected to have the disease. Id. The court held that this was enough to survive a motion to dismiss because: “(1) she suffers from diabetes; (2) her supervisors had notice; and (3) her employer denied her accommodation request after she asked that she not be assigned to locations which put her at risk of contracting COVID-19.” Id. at *3 (citations and quotations to the record omitted).

Courts have also had to reassess what counts as a disability in the COVID-19 era in light of its more serious consequences for people with preexisting conditions. In Peeples v. Clinical Support Options, Inc., No. 3:20-CV-30144-KAR, 2020 WL 5542719 (D. Mass. Sept. 16, 2020), the plaintiff (pronoun “they”) sought a preliminary injunction that would preclude their employer from terminating their employment due to their refusal to work in the office given the pandemic. Plaintiff suffered from moderate asthma, which put them at greater risk from COVID according to the CDC and their physician. The employer initially granted their request to work from home. But after several months of teleworking, the employer asked all managers, including plaintiff, to return to the office. Id. Plaintiff was granted an accommodation at that time to continue to work from home, which they did for another four weeks. At the end of those four weeks, plaintiff’s request to continue to telework was denied. They returned to the office, but immediately noticed that their requested personal protective equipment, including masks, hand sanitizer, and wipes had not been provided. After working under those conditions for several weeks, plaintiff again requested an accommodation to be allowed to work from home. The request was again denied, according to plaintiff, without an individualized assessment of plaintiff’s situation. Id. Shortly thereafter, plaintiff filed a complaint and sought, among other things, a preliminary injunction requiring their employer to allow them to telework during the duration of the pandemic.

The court first held that the plaintiff would likely succeed in establishing that their asthma qualifies as a disability, “at least during the COVID-19 pandemic.” Id. at *3. The Court cited two prior cases, both from July, which held that determining whether a condition rises to the level of a disability under the ADA, meaning that it substantially limits a major life activity, requires a court to consider all the circumstances, including those prevailing due to the COVID pandemic. Id. (citing Silver v. City of Alexandria, No. 1:20-CV-00698, 2020 WL 3639696, at *4 (W.D. La. July 6, 2020) and Valentine v. Collier, No. 4:20-CV-1115, 2020 WL 3625730, at *2 (S.D. Tex. July 2, 2020)). The Court also held that the plaintiff would likely be able to establish that they were able to perform their essential job duties from home, given that they had teleworked for several weeks. The employer argued that it had accommodated plaintiff by issuing KN95 face masks and other PPE and that allowing further teleworking would be an undue hardship. But the court held that this did not meet the requirements for an interactive process that is required by the ADA when considering a request for a reasonable accommodation, nor had the employer established that plaintiff’s request to telework would be an undue hardship. Finally, the court found that the plaintiff had established a likelihood of irreparable harm due to the hardship that they would suffer if laid off during the pandemic “at a time when the unemployment rate in Massachusetts was the highest in the country (an astounding 16.1%).” Id. at *5. The Court ordered the employer to allow plaintiff to continue to telework for a period of 60 days or until further order of the Court. Id.

Possible Future Directions For COVID-related Wage And Hour Lawsuits

Although there have been some wage and hour cases that have relied, in whole or in part, on theories that arise out of the COVID-19 pandemic, those theories have yet to shape an entirely new direction for wage of wage and hour litigation. Early case decisions have tended to involve wage and hour settlements – which must be approved by the court – where courts have appeared to be more lenient towards lower settlement values in light of employers’ decreased ability to pay due to the business disruptions caused by the pandemic. Another issue that has generated some early case law involves equitable tolling of putative opt-ins’ claims. Generally speaking, there appears to be a greater willingness by courts to grant equitable tolling where the pandemic caused unusual delays in the process of deciding conditional certification and sending notice of the lawsuit to putative members of the collective action.

Given the often dramatic work disruptions that were caused by the pandemic, it seems likely and only a matter of time before pandemic-related theories will begin to take hold in the wage and hour space. Employers should be extra careful about how they account for and properly pay regular rate and overtime pay in light of those disruptions. For example, some recent lawsuits have alleged that employers failed to pay employees for virus-related sick leave or failed to account for bonuses when determining an employee’s regular rate for paid sick time. A sharp increase in the use of sick time means that those types of issues can quickly add up to large-scale class or collective actions.

Early decisions show the variety of fact patterns that can give rise to such lawsuits, and how those cases might proceed through the courts. For example, in Emery v. Home Caregivers of Cookeville, LLC, No. 2:20-CV-38, 2020 WL 7240159 (M.D. Tenn. Dec. 9, 2020), an employee-caregiver sought conditional certification of a collective action of residential care facility caregivers, alleging that “Defendants failed to pay overtime for mandated ‘24/7’ work by Plaintiff and other caregivers at residential care facilities during the COVID-19 pandemic.” Id. at *1. This claim arose when caregivers were forced to “shelter in place” at the facility while continuing to provide care to residents. The Department of Labor had gotten involved with respect to that claim and had entered into a settlement with the Defendants on behalf of 57 caregivers. Nevertheless, the court granted conditional certification on this claim, holding that “[n]othing in the plain text of the FLSA suggests that a DOL-supervised settlement proceeding and a district court collective action cannot proceed at the same time.” Id. at *3 (quoting Fitzwater v. Cole, No. 18-00137-N, 2018 WL 6204452, at *4 (S.D. Ala. Nov. 28, 2018)).

As this case demonstrates, pandemic-related wage and hour theories could present an easier path to conditional certification of a collective action. To the extent plaintiffs can point to a sudden, global “act of God” as the singular cause of alleged wage and hour violations, that presents an expedient argument in favor of finding that employees are “similarly situated” with respect to such violations.

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The country appears to be riding the largest and most destructive wave of the pandemic yet – hopefully its last. Infections, hospitalizations, and deaths are all growing at an alarming rate with no sign of letting up. Employers are bracing for more and greater business disruptions and a workforce that is becoming ever more alarmed at the unfolding catastrophe. It is reasonable to expect that disability discrimination and reasonable accommodation claims will grow as a result, along with other types of pandemic-related employment litigation. These early case decisions offer scant but precious insights into how the courts may view these issues as those types of lawsuits develop.

We are all hoping for an efficient distribution of the vaccines that will bring a speedy end to this disease. In the meantime, we will continue to monitor pandemic-related case filings and significant decisions to analyze trends and share our insights and analysis with the employer community.