As Workplaces Open, Experts Fear Lawsuit Tsunami

As more Americans return to the workplace, employers are now faced with the difficult issue of transitioning reluctant staff back as well as complaints and legal action from the most reluctant of workers. Already some returning workers have started to sue their employers, often accusing them of not adequately protecting their workers against COVID-19 in the workplace or disability discrimination for failure to accommodate workers who have conditions that put them at heightened risk of severe symptoms.

Insurers are bracing for an avalanche of litigation. These lawsuits have been going on since the start of the pandemic, but they have been picking up steam since the start of 2021. Since the onset of the health emergency, there have been 2,294 employment COVID-19-related lawsuits filed throughout the country, according to Jackson Lewis, an employment and labor law firm that has set up a pandemic litigation tracker on its website. There are a few points that employers should consider as they bring staff back to the workplace:

Deciding who should return
Transitioning workers back to the workplace will require delicate discussions, particularly with staff who may be reluctant about working indoors in close or relatively close quarters to others. It will require empathy on the part of the employer, particularly as some workers may be afraid. For employees who are afraid, talk to them about how you can alleviate their concerns and work with them so they can feel comfortable about coming back.

Also make sure that decisions on who can continue working remotely and who will need to physically come to work are not discriminatory. You need to be especially mindful of possibly discriminating against protected classes. You’ll need to establish protocols that are based on the employee’s work function. You may get into trouble if you offer remote work to only some workers who perform specific tasks, and require others who do the same work to come back to the office.

Ensuring a safe workplace
Keep in mind that many of your staff may be reluctant or downright afraid to go back to the workplace and work near others. Employers need to make decisions on what protocols they will keep in place, considering the new Cal/OSHA regulations covered on page 1.

One of the best ways to reduce the chances of COVID-19 spreading in your workplace is to have employees who are vaccinated. There’s a lot of debate right now about whether companies should require workers to get vaccinated. While employers who want to require their workers to get inoculated against the coronavirus have received some cover under April 2021 guidance from the U.S. Equal Employment Opportunity Commission, you should tread carefully. The guidance states that an employer can establish a mandatory vaccination policy if the need for it is job-related or if remaining unvaccinated would pose a direct threat to other employees, customers or themselves.

Still, many employers are wary of taking the extra step of requiring vaccinations, particularly as the vaccines currently authorized for use are under an emergency authorization (it’s expected soon that the Food and Drug Administration will give final approval to the Pfizer and Moderna vaccines). There are also other issues that employers have to consider, including religious objections. Some employers, instead of requiring vaccination, are providing incentives to workers who get the vaccine.

Requests for accommodation
With disability, leave and accommodation cases accounting for nearly half of all COVID-19 workplace cases filed to date, it’s imperative that employers take requests for accommodation seriously.

If one of your employees asks to continue working from home because they have medical issues that put them at heightened risk of suffering a serious case of COVID-19, you will need to enter into negotiations with them to vet the request. If you deny the request, they may sue for failure to provide that accommodation.

This situation could also arise if an employee says they can’t take the vaccine because of an allergy. If the employer mandates it anyway, the individual may say their employer discriminated against them because of it.

The takeaway
While the pandemic has been fraught with a number of risks and challenges for employers and workers alike, transitioning back to normal operations will require planning and attention to workers who are reluctant. Also, make sure your firm has employment practices liability coverage, which would help cover the costs of any litigation you may find yourself suddenly embroiled in. It can cover your legal costs and any awards or settlements.