2022 Update:
The litigation fallout against employers over COVID-19-related issues is really coming to a head in California. Accommodating employees during the pandemic has proven to be challenging for California employers. In fact, 26% of all COVID-related claims against California employers have been employment discrimination claims.
For example, since the beginning of the pandemic, there has been an increase in cases regarding California’s version of the Americans with Disabilities Act (ADA).
Read on to learn more about some of the other types of common claims California employers are seeing.
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COVID-19 has severely impacted our society, workers, employers and the public. For the most part, employment laws have not changed. But the Covid-19 pandemic has and will continue to influence employment litigation and the workplace.
Last year there were 234 total employment litigation claims in California that were related to COVID-19 (from March 3 through November 30). Of those lawsuits, 65% were against private employers with fewer than 500 employees.
The most common complaints had to do with employment discrimination or remote work conflicts. Our team at the Sherman Law Corporation has divided these into 6 main categories based on the most prevalent claims from 2020.
1. Unsafe California working conditions
In the era of COVID-19, it’s unsurprising that unsafe working conditions claims have increased. Most of these have had to do with the failure of the employer to take some precaution to protect employees against the dangers of contracting COVID-19.
Some examples include:
- Failure to adequately clean and sanitize workplaces
- Failure to provide adequate personal protective equipment (PPE)
- Failure to enforce social distancing rules or mask requirements
- Failure to comply with state and local orders regarding the closure and reopening of “essential” or “nonessential” businesses
- Failure to comply with CDC or Occupational Safety and Health Administration (OSHA) guidelines
2. Violation of FMLA/FFCRA
The Family and Medical Leave Act (FMLA) requires covered employers to provide their employees with unpaid, job-protected leave for specified family and medical reasons. The Families First Coronavirus Response Act (FFCRA) was passed in March of 2020 to require covered employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
Both of these acts provide employees the opportunity to sue their employers for violation of federal law.
Common complaints in employment litigation suits include:
- Failure to provide COVID-related leave under FMLA or FFCRA
- Failure to provide paid leave under FFCRA
- Retaliation for utilizing leave related to COVID-19
- Interference with ability to take leave related to COVID-19
3. Retaliation/whistleblower cases
Various sections of California Labor Code prevent employers from retaliating against their employees for reporting or filing complaints about their employers. In the era of COVID-19, many employees have accused their employers of retaliation for COVID-related whistleblowing.
For example:
- Retaliation for objecting to unsafe work conditions or exposure to individuals with COVID-19 symptoms
- Retaliation for reporting misuse of PPP funds or CARES Act relief
- Retaliation for utilizing leave related to COVID-19
- Workers’ compensation retaliation claims
- Violations of other state and federal retaliation statutes based on alleged protected activity
4. Wage and hour issues in California
The sudden closure and reopening of businesses during the pandemic, as well as the increased need for employees to take paid leave, have given rise to an increase in disputes over wage payment and hour calculation.
Some of these disputes have included the following:
- Failure to pay for hours worked prior to business closures due to COVID concerns
- Unpaid hazard pay, overtime and sick pay
- Unpaid compensation claims arising out of remote work by non-exempt employees
- “Donning/doffing-like” time spent completing health screenings, temperature checks, and/or other tests mandated by employers as they reopen
- Unpaid sick leave claims under state sick leave statutes and the FFCRA
- Claims related to vacation paid time off and paid sick leave
- Claims for business-related expenses arising from remote work
5. Data privacy/technology
Privacy concerns have also been brought up related to symptom tracking, contact tracing, proximity tracking, and use of other forms of advanced COVID related technology. Many of these claims allege that employers have violated their employees biometric privacy by instituting excessive surveillance and monitoring.
In addition, there have been claims alleging cybersecurity and data breaches due to increased work-from-home arrangements.
6. Disability discrimination
Finally, the need to provide accomodations in the era of COVID-19 has created novel issues. One of the most common COVID-related claims made against employers is disability discrimination.
Some examples of disability discrimination claims include:
- Forced leaves of absence
- Failures to accommodate, including denials of requests to work from home
- Taking leave due to COVID-19 concerns in the workplace or concerns regarding employees’ preexisting health conditions or risk factors
- Screening out older employees while implementing return-to-work plans.
Contact an employment litigation attorney in California today
If your company is being sued over COVID-related employment discrimination claims, Sherman Law Corporation can help. We have the experience necessary to help you reach a just settlement that works for everyone. Contact us for a free consultation today.
