The scope of COVID-19 related lawsuits continues to expand as workers across the country are filing lawsuits seeking protection and damages from unfair labor practices. Moreover, there is a sense that more cases will be filed as more employees are impacted by the pandemic and businesses close, sometimes with little or no notice to soon-to-be unemployed workers.
Congress enacts the Families First Coronavirus Response Act
In March 2020, when Congress realized that a shut-down was imminent, Congress passed the Families First Coronavirus Response Act (FFCRA) which requires certain employers to offer employees paid sick leave or expanded family and medical leave for COVID-19 related reasons. Employees must have been employed for at least 30 days to benefit from FFCRA.
In general, the FFCRA provides for two weeks (up to 80 hours) of paid sick leave with regular pay if the employee is unable to work due to quarantine, or experiencing COVID-19 symptoms. Also, under the FFCRA, if an employee is unable to work due to the need to provide care for another individual under quarantine, or if their child’s school or child care provider closes due to COVID-19, the employee is allowed two weeks (up to 80 hours) of paid sick leave at two-thirds regular pay.
When an employee is unable to work in order to provide child care due to schools or child care being closed, employees are eligible for an additional 10 weeks of paid expanded family and medical leave at two-thirds regular pay.
Shortly after the FFCRA was enacted, a federal lawsuit was filed by an Eastern Airlines executive alleging she was fired after she requested time off under the FFCRA. According to the plaintiff, a single mother, she requested two hours of paid time off each day in order to care for her son, whose school was closed due to the pandemic. On the surface, it appears that the FFCRA was enacted to provide assistance to working parents such as the plaintiff in the midst of the pandemic. In this case, however, Eastern Airlines contends that the former employee was terminated on March 27, 2020, prior to the FFCRA taking effect on April 1, 2020.
COVID-19 and the ADA
Since 1990, the Americans with Disabilities Act (ADA) has provided significant protection to persons with disabilities in the workplace as well as society in general. One key aspect of the ADA is the requirement that employers provide reasonable accommodations to qualified employees with disabilities unless the accommodation would result in undue hardship to the employer. This requirement is quite broad and, for example, protects potential employees during the hiring and training process.
What constitutes a reasonable accommodation depends on the nature of the employee’s disability, the necessary duties of the job, the physical workplace and hardship (if any) to the employer. As a result of COVID-19, however, courts have been asked to consider how COVID-19 impacts established law and perhaps the need to re-interpret the meaning of reasonable accommodation under the ADA.
In June 2020, an engineer filed a lawsuit against his employer alleging discrimination in violation of the Massachusetts state ADA. In March, the employee was allowed to work from home in light of a state “stay at home” order. In April, his employer requested that he return to the office for work, but the employee requested he be allowed to continue to work remotely. The employee, who has high blood pressure and cares for his elderly mother, argues that he is at high risk of serious illness if he contracts COVID-19. He also fears transmitting the disease to his elderly mother who suffers from multiple medical conditions that place her at high risk. When his request for a reasonable accommodation, specifically to work remotely, was denied, he refused to return to the office, and was terminated.
Prior to the pandemic, courts did not consider a request to work remotely to be a reasonable accommodation. However, with increased health risks due to COVID-19, courts will be asked to re-consider whether a request to work remotely due to a heightened health risk of contracting or spreading the virus is a reasonable accommodation under the ADA.
More broadly, attorneys are using novel legal arguments in lawsuits based on the unique circumstances due to COVID-19 and the need to protect employees when current labor laws may be insufficient or simply never considered the challenges posed by the pandemic.
Lawsuits Filed after Employees Die From COVID-19
Sadly, some employees have died from COVID-19, and their families have filed lawsuits claiming that the workplace was not safe and employers failed to protect employees from the deadly virus. The key issue is whether employers followed federal and state safety guidelines, and if the employer failed to ensure proper protocols at work, they may be held liable for the death of an employee who contracted COVID-19 as a result of an unsafe workplace. Employers, however, claim that it is very difficult to prove how or where someone contracts the disease.
In one case, the family of a Safeway employee allege that the work environment was not safe because sick employees were still coming to work. Moreover, according to the lawsuit, on March 20, a memo was posted that stated, “If you are healthy, a mask will not protect you from the respiratory drops an infected person coughs out. Open areas of the mask can let those drops in.” The family filed a lawsuit after the employee tested positive for COVID-19 on April 4 and died eight days later. According to the family, Safeway failed to follow guidelines of the Occupational Safety and Health Administration (OSHA) issued on March 9 that required sick employees to be isolated.
Similar lawsuits have been filed against Walmart. In one case against a Walmart in Illinois, an employee was allegedly told to continue to work despite having symptoms, and was eventually sent home two days later when his symptoms worsened. He died two days later. Another Walmart employee in Dallas has filed a lawsuit that alleges she contracted COVID-19 because Walmart failed to provide personal protection equipment (PPE) and failed to follow health guidelines issued by health agencies including the Centers for Disease Control (CDC) and OSHA. As a result, she claims she contracted COVID-19 from the unsafe work environment at Walmart.
Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including COVID-19 related health and safety violations in the workplace, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.
If you or someone you know suffered employment violations due to COVID-19 related health and safety violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.