Many employers across the U.S. continue to face legal concerns as they navigate reopening and maintaining their businesses during the COVID-19 pandemic. As of the start of August, more than 4,000 lawsuits relating to COVID-19 have been filed in federal and state courts.

The most frequent claims in these suits are employment discrimination, work-from-home/leave issues, retaliation, unsafe working conditions/lack of PPE, and wage and hour claims. Class action lawsuits against employers are also rising since the pandemic began and most commonly involve unsafe working conditions and wage and hour concerns. The states with the highest number of COVID-19 related lawsuits are New York, California, Florida, Texas, Illinois, and New Jersey, not surprisingly the most populous and hardest hit states.

1.     Employment

In the last few months, pandemic-driven employment litigation has blossomed. Starting with the dilemma of the working parent, employees have filed lawsuits detailing their alleged struggles with their current or former employers and adequate childcare coverage. If the allegations in the lawsuits are to be believed, many of the sued employers decided against remote accommodations and demanded in-office attendance to the alleged detriment of their employees who have children. Interestingly, several lawsuits allege a newly minted claim of Family First Coronavirus Response Act (“FFCRA”) “interference.” Those employees allege that their employers failed to properly post or notify employees of their rights under the FFCRA.

Many lawsuits also detail the legal fallout from living and working through a pandemic. Employees have filed retaliation lawsuits under the FMLA, FFCRA, EFMLA, or ADA, alleging they were wrongfully terminated after contracting the virus and were subsequently unable to return to work. The typical allegation is that a sick employee, the plaintiff, was accused of job abandonment and terminated for attendance-related reasons. Several cases detail co-workers who contracted COVID-19 and passed away after an employer allegedly discouraged disclosure of potential exposure to an employee or customer who tested positive for the virus.

2.    Contracts

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) has generated a number of the most recent COVID-19 cases. In these cases, agents (or classes of agents) sought reimbursement from lenders under the provisions of the CARES Act for their role in assisting small businesses in procuring loans under the Paycheck Protection Program. Other recent COVID-19 cases involve failed transactions for the purchase of personal protection equipment such as face coverings. Finally, a number of recent cases involve contracts that were allegedly breached due to an inability, or unwillingness to perform under the terms of a contract due to COVID-19.

3.    Negligence

Personal injury litigation resulting from COVID-19 also continues to rise as the number of cases and deaths due to the virus skyrockets. Recently filed cases in federal district court include dozens of lawsuits against cruise ship operators such as Princess Cruise Lines, Ltd. Passengers allege, among other things, that the cruise ships improperly continued operations by allowing new passengers aboard despite knowledge that the ship was infected from previous passengers who came down with symptoms of the coronavirus, took no adequate preventive measures, and placed the passengers at risk of contracting the disease.

Nursing home facilities continue to be targets of litigation, as well. Some facilities are now facing gross negligence and wrongful death claims filed by the patients’ families because of the alleged poor infection control and precautions, and the failure to comply with restrictions to keep their residents safe from the coronavirus. Many of the negligence-based COVID-19 lawsuits commonly revolved around whether the concerned entities took reasonable measures to do their best in preventing the spread of the coronavirus.

As we move forward in the “new normal,” employers must be prepared to recognize the risks of such claims and lawsuits, mitigate those risks whenever possible, and be prepared to defend the actions and decisions they took during the COVID-19 pandemic. The rise in lawsuits stemming from COVID-19 related issues is a glaring reminder for employers that typical best practices, CDC recommendations, and local guidelines concerning reopening the workplace should not be ignored. While operating in these unprecedented times, businesses need to continue training employees so they have a solid understanding of workplace safety practices and employee rights.

The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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