By Gerald L. Maatman and Jennifer A. Riley

Seyfarth Synopsis: As businesses chart their paths through the difficulties of reopening their operations in the wake of the COVID-19 pandemic, another risk looms – the danger of being the target of a class action lawsuit.  That trend is in its formative stage already, and members of the plaintiffs’ class action bar have made clear that they envision a target-rich environment for lawsuits on behalf of workers and consumers.  The foreseeable future presents unprecedented challenges for business executives and corporate counsel.

In this post, we outline a playbook that can serve as a class action survival guide for corporations and their decision-makers.  Extensive compliance efforts, well-crafted planning activities, and careful administration of corporate protocols are key to creating a risk management program that gets ahead of post-COVID-19 class action exposures.

Key Risks In The Post-COVID-19 Business Environment

As the pandemic took hold, members of the plaintiffs’ bar retooled their class action theories to match the landscape.  They targeted companies over layoffs, continued work requirements, and allegedly inadequate leave or benefits policies.  As companies move to reopen and rehire, they should anticipate similar adaptation, as the plaintiffs’ bar pivots to address legal risks in the next phase of COVID-19.

In particular, we anticipate a surge of activity on the discrimination, health & safety, and wage & hour fronts.  Those workers left out of mass re-hirings have the potential to assert claims of workplace bias based on their prospective employers’ failure to include them.  Those included in return to work plans have the potential to assert ADA claims for failure to accommodate and public nuisance or breach of duty claims for their employers’ alleged failure to protect them from COVID-19 infections.  Those required to undergo temperature screenings or required to wait during work station cleanings are apt to claim that their employers improperly failed to compensate them for such time.

Members of the Plaintiffs’ class action bar have begun testing these theories, and courts have begun to start weaving a patchwork of answers to questions such as whether a non-symptomatic plaintiff can represent or participate in a class that includes individuals who experienced symptoms and whether employers who allegedly failed to follow health & safety guidance are subject to claims for public nuisance or breach of duty. Employers can expect a dizzying array of legal rulings on these novel issues in the coming months.

Compliance Activities – Where To Focus Efforts

With this smorgasbord of potential claims and risks, how can a company best navigate these issues?  In our view, now is a good time to revisit the policies and procedures that govern your workplace and to develop clear protocols to address COVID-19 issues.  On the policy front, employers should reevaluate the terms and conditions of employment, including whether or how to adopt workplace arbitration programs with class action waivers, revisit their job descriptions, and review their complaint or grievance processes to ensure that they have delineated a clear path for raising and addressing employee concerns.

Relative to developing protocols, employees should respond to the pandemic pro-actively by anticipating issues and adopting thoughtful protocols before problems arise.  In other words, rather than wait for a worker to complain that a co-worker is coughing and may be a potential source of the coronavirus, or for the same worker to demand paid leave in response to safety concerns, employers should develop protocols that anticipate these issues and provide practical guidelines and clear rules that managers can implement and workers can understand.  Advance planning can help employers ensure that they take a thoughtful approach across their organization and across all components of their workforce.  Haphazard, one-off decision-making is typically a recipe for legal problems, whereas sound protocols and structured decision-making often builds a solid framework for better outcomes and legally defensible positions.

Planning Activities – Key Decisions To Reduce Or Eliminate Class Actions

A company’s protocols should take into account the nature of its business and workforce.  A fear of reporting to work, for example, is a significant issue that many employers are apt to encounter.  When workers are scared to report to work due to safety concerns, employers should begin by understanding the reason and whether the worker is scared because of a disability.  If so, the employer should utilize an individualized interactive process appropriate to the employee’s circumstances.  The answer might turn on whether the employee can perform the essential functions of his or her job from home and, if so, whether beginning or continuing a work from home arrangement may be a reasonable accommodation.

For employees for whom work from home is not an option, employees should take care to develop protocols that comply with and implement guidance issued by agencies such as the CDC, OSHA, and the EEOC. Further, they should provide clear rules for their managers and workers to follow relative to implementing these protocols.

Administration Of Corporate Protocols – Creation Of Positive Evidence To Nip Class Action Exposures In The Bud Before They Spiral Out Of Control

Beyond merely developing protocols, employers need to think pro-actively about tracking and documenting their compliance efforts.  Many employers have developed cleaning protocols, made masks available, and instructed employees to maintain social distancing.  But employers also need to plan ahead so that they are prepared to demonstrate that, if challenged, their cleaning protocols were implemented and followed on a local level, employees were made aware of policies and procedures, and concerns were investigated and remediated.

These problems require application of the fundamentals of sound human resources administration.  In addition to developing guidelines and protocols, employees should document their compliance efforts.  Employers should consider asking employees to acknowledge their receipt and agreement to abide by workplace protocols, should roll out or reinforce a complaint process for employees to raise or report concerns, and should document their cleaning efforts and corrective measures.

Conclusion – A New Corporate Playbook

Class action litigation will continue to evolve to the realities of the pandemic and post-COVID-19 pandemic workforce.  Employers can augment their defenses to litigation to get ahead of the curve through thoughtful planning, execution, and documentation.