COVID-19 Litigation Explosion

Vice President, Solutions, Marketing and Partnerships

The coronavirus (COVID-19) pandemic has generated a litigation explosion across a wide range of issues, including privacy, discrimination, work-from-home/personal leave requests, retaliation, unsafe working conditions/lack of personal protective equipment (PPE), and wage/hours claims. There have been hundreds of business-related lawsuits filed related to the pandemic, with dozens more filed weekly. 

Here are some quick facts:

  • 283 lawsuits filed through June 30, 2020.[1]
  • 60 filed in April, 94 recorded in May and 122 filed in June. Increase of 103% during that period.[2]
  • 43% of COVID-19 related lawsuits have been filed in June alone.[3]

Most lawsuits have been individual claims. However, there has been an increase in class-action lawsuits. The families of several frontline workers who were infected and died from the coronavirus are suing their loved ones' employers[4] The relatives argue that they should be compensated since their family members were not adequately protected during the pandemic. The Wall Street Journal reports that the actions are a "first wave," saying that lawsuits have been filed against Walmart, Safeway, Tyson Foods, health care centers, and nursing homes. [5]

As a business, it is understandable that you must focus on making money while mitigating risks so you can continue to keep the business alive. Employers across the globe have taken action to combat the virus. Companies have begun screening workers for signs of illness, requiring everyone to wear masks, sanitizing workspaces, limiting the number of customers inside stores, coordinating remote work environments, and implementing many other changes during this 'new normal.' If a company does not act to mitigate these risks, they have a significantly increased likelihood of being sued. These precautions are similar to the fundamental reasons why we are required to wear shoes in buildings, or not smoke indoors, or not walk across slippery areas. When companies do not account for their unique risks and apply requirements or restrictions, they open themselves up for litigation at any level. 

According to a tracking report from a legal firm,[6] the states seeing the most action when it comes to COVID-19-related workplace litigation are the same states that typically see the most employment-related lawsuits. California leads the way in the number of overall lawsuits filed, as the 47 filed there through June 30 far outpace the state with the second-highest number of claims (Florida, with 32). The top five include California (47), Florida (32), New Jersey (31), New York (21), and Texas (19).

California and Florida are also ranked first and second when it comes to the number of COVID-19 class action workplace lawsuits filed through June 30, with New York also joining as the only other state in the top four of both lists: California (11), Florida (8), Illinois (6), and New York (4). As claims continue to be filed at a rapid pace, no state or company will be immune to COVID-19-related lawsuits.

Increase in Class Action COVID-19-Related Litigation

In April, the estate of a Walmart worker who died from COVID-19 sued the company for wrongful death.[7] Also, back in April, workers Sue Smithfield Foods, one of the largest meat producers in the U.S., alleging that their working conditions put them at risk for COVID-19. [8] Five McDonald's workers in Chicago filed a class-action lawsuit against the chain in May, accusing it of failing to adopt government safety guidance on COVID-19 and endangering employees and their families. [9] Also, back in May, an ex-Amazon employee sued for wrongful termination, claiming coronavirus related whistleblowing led to her firing. [10]

"This early litigation is really, from our vantage point, the tip of the iceberg," says Harold Kim, president of the U.S. Chamber Institute for Legal Reform. [11] "Businesses can expect more "opportunistic class action lawsuits down the road." Business and insurance companies are preparing for an onslaught. "I worry the plaintiffs' bar will bring opportunistic class action lawsuits down the road," says Steven Lehotsky, chief counsel for the U.S. Chamber Litigation Center.[12]

Just as the litigation explosion of individual claims and class action lawsuits arose from pandemic-related shutdowns, so too will lawsuits come as businesses begin to reopen, and employers start implementing return-to-work objectives. Litigation around compliance with government guidelines, negligence causes of action related to safety measures, lawsuits around COVID-19 treatments, newly developed personal protective equipment, and other products, and claims around social distancing implementation appears to be on the horizon.

Take Action and Stay Vigilant

Employers should be on notice; the decisions made today regarding both current workplace safety and return-to-work plans will impact future lawsuits. Employers should carefully assess their unique workplace environments, implement appropriate safety protocols to limit the spread of the coronavirus, and follow fast changing COVID-19 guidance from federal authorities such as the Equal Employment Opportunity Commission (EEOC)[13], Center for Disease Control (CDC)[14], and the Occupational Safety and Health Association (OSHA)[15] in addition to all applicable state and local authorities.

 
 

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