The Coronavirus (COVID-19) pandemic changed the way workers relate to their employment and to the world. Some engaged in remote working for the first time. Others were laid-off, some permanently, some temporarily. Others kept working in conditions less than conducive to good health.
As a result, many plaintiffs filed lawsuits against their employers. One litigation tracker estimates there are 783 complaints of various types across the nation. The most common complaint type relates to remote working/leave conflicts. Georgia has 12 COVID-19 complaints.
Employers have several ways to minimize liability in a lawsuit related to COVID-19. The following describes the various types of lawsuits, provides a general discussion of the federal and state employer shield laws, and suggests a few tips that employers can use to avoid COVID-19 lawsuits.
An employer's decision with respect to workers sent home in March 2020 creates similar issues for employers now ready to bring employees back to work. Discrimination looms large in these considerations. For example, the Equal Employment Opportunity Commission (EEOC) says that employers may not make assumptions as to age, ability to telework, known/suspected disabilities, and suspected vulnerabilities when making employment decisions.
The following are some examples of current lawsuits:
Federal legislators proposed the Safe to Work Act in Senate Bill 4317, introduced in July 2020. The bill sits with the Senate Judiciary Committee. The bill would protect employers that follow public health guidelines and would retain liability for gross negligence and intentional misconduct. However, there has been no movement on the bill to date. That means no federal liability shield is being enforced.
Georgia passed liability protection for businesses in the Georgia COVID-19 Pandemic Business Safety Act. The law is in effect and provides that plaintiffs face a rebuttable presumption that they assumed the risk of exposure by continuing to go to work for the defendant employer. This law shifts the burden of proof to the plaintiff but does not apply if the defendant is accused of gross negligence, intentional misconduct, or intentional harm. If the plaintiff cannot rebut the risk presumption, the lawsuit will not go forward.
Here are a few ways that employers can help avoid lawsuits in this uncertain time.
The number of COVID-19 related lawsuits is expected to rise as states and municipalities relax the COVID-19 restrictions and employees head back to work. This is likely due to the speed with which employers closed down operations due to the pandemic. Employers are well-advised to keep abreast of all new legislation and recommendations from labor agencies.