Seyfarth Synopsis: The COVID-19 pandemic had a significant impact on all aspects of life in 2020. Its impact extended to the legal system in general and workplace class actions in particular. The pandemic spiked class actions (of all varieties) and litigation over all types of workplace issues. As the pandemic took hold, the plaintiffs’ bar retooled their class action theories to match. Employers are apt to see these workplace class actions expand and morph as businesses restart operations in the wake of COVID-19.
As state and local governments responded to the COVID-19 threat, many employers moved their employees to tele-work or work-from-home arrangements, or laid off or furloughed workers, and many businesses – and courts – shut down or postponed critical operations.
The pace of court filings, however, did not match this trend as the Plaintiffs’ bar retooled their theories to match. During 2020, COVID-19 gave rise to at least 1,005 workplace lawsuits, filed across 47 states and 28 industries. As business operations reopen in 2021, even more coronavirus-related lawsuits are expected in 2021.
As the following graphic demonstrates, the plaintiffs’ bar focused these lawsuits in traditionally employee-friendly jurisdictions, as they filed 181, or 18%, of these suits in California, followed in numbers by New Jersey (150), Florida (95), New York (68), and Ohio (66).
Reflecting the creativity of the plaintiffs’ bar, in the lawsuits filed to date, plaintiffs have asserted 46 different issues or theories of liability, with five primary theories as the key drivers of COVID-19 workplace litigation, including: (1) alleged failure to provide a safe working environment; (2) discrimination claims, particularly relating to disability and age; (3) leave claims under the FMLA and the patchwork of federal, state, and local laws enacted in response to the pandemic; (4) retaliation and whistleblower claims, often attached to either a workplace safety or leave issue; and (5) wage & hour lawsuits arising out of the pandemic.
The following graphic illustrates the breakdown by issue.
Understandably, in-house legal professionals overwhelmingly cite workplace liability as the biggest legal risk they face related to the global health crisis. The lawsuits were spread across a broad array of industries, with highest numbers targeting healthcare and business services, as illustrated by the following chart. Employers of all industries and sizes, however, are continuing to ready themselves for workplace litigation that they anticipate is still in the pipeline, as the new theories developed in response to the pandemic become part of the fabric of workplace litigation for years to come.
We anticipate that the tide of workplace class action litigation will continue to rise in several key areas such as discrimination and workplace bias, wage & hour, as well as on the health & safety front. Employers are apt to see these workplace class actions expand and morph as businesses restart operations in 2021 in the wake of COVID-19, particularly as courts roll out a patchwork quilt of rulings.
These filings reflect the creativity of the plaintiffs’ bar, particularly in the workplace safety arena. The Occupational Safety & Health Act (“OSHA”) requires that employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In the context of COVID-19, the OSHA advised employers to follow guidelines from the CDC, such as sanitizing surfaces and ensuring social distancing. Whereas federal administrative guidance does not generally give rise to a private cause of action, members of the plaintiffs’ bar attempted to shoehorn failures to comply into claims for public nuisance as well as claims for breach of duty to protect the health and safety of employees.
As lawsuits rolled in from employees who alleged that they were “encouraged” to continue attending work, that they were prevented from adequately washing hands or sanitizing workstations, and that their employers’ efforts fell short of providing protection of their workers’ health, courts issued a series of rulings as to whether those alleging “failure to protect” can state a viable claim, particularly if they did not contract the disease. A federal court in Missouri in Rural Community Workers Alliance v. Smithfield Foods, Inc., No. 20-CV-6063 (W.D. Mo. May 5, 2020), for instance, granted a motion to dismiss claims that an employer failed to protect employees at a meat processing plant, and declined to hear the case pursuant to the primary jurisdiction doctrine to allow the OSHA to consider the issues. An Illinois state court, in Massey v. McDonald’s Corp., No. 2020-CH-04247 (Cir. Ct. Cook County June 3, 2020), by contrast, refused to toss accusations by a proposed class of Chicago-based employees that their employer failed to do enough to protect them during the ongoing pandemic. Further, a California state court in United Farm Workers of America, et al. v. Foster Poultry Farms, No. 20-CV-3605 (Cal. Super. Ct. Dec. 23, 2020), entered a tentative ruling approving a temporary restraining order to require an employer to follow CDC guidelines to keep its plant workers safe from COVID-19.
Despite the swell of filings, by the end of 2020, few cases raising COVID-related issues had matured to the class certification stage. As a result, few courts had considered whether the pandemic gave rise to concerns that aided plaintiffs in clearing certification hurdles, and the courts that considered such issues reached different conclusions. On April 10, 2020, for instance, a court in the Northern District of Illinois in Money v. Pritzker, No. 20-CV-02093 (N.D. Ill. April 10, 2020), declined to certify a class of state inmates concerned about their risk of COVID-19 infection because it found that each putative class member came with a unique situation and the imperative of individualized determinations rendered the case inappropriate for class treatment. On June 6, 2020, a court in the Southern District of Florida reached a different result in Gayle v. Meade, No. 20-CV-21553 (S.D. Fla. June 6, 2020). Focusing on the threat of a heightened risk of severe illness, despite the need for individualized assessment of each detainee’s vulnerabilities to COVID-19, the court ruled that plaintiffs satisfied Rule 23’s commonality requirement by pointing to common conduct, including failure to implement adequate precautionary measures and protocols, lack of access to hygiene products, and lack of social distancing. Companies should anticipate that, as employers continue to navigate the pandemic and filings work their way through the court system, 2021 will bring additional lawsuits and additional rulings on myriad issues that shape future litigation.