Seyfarth Synopsis: As employers expected, the pandemic has brought new challenges to managing a workforce, and of course, new litigation. Here we address hotspots of COVID-19 litigation in California to help employers know where they should be taking special care.

Participants on either side of recent employment litigation in California can often point to the same scapegoat: “COVID made me do it.” Most recent pandemic-related claims fall into one of two categories: (1) Employees were forced to resign, forced to take a leave, or terminated for voicing concerns about the lack of health and safety protocols; and (2) employees were laid off ostensibly because of COVID-necessitated business changes, but actually because of something more nefarious.

Workplace Safety and Whistleblower Retaliation: The New Fall Guy

In the first category of claims, employees present themselves as “whistleblowers” who reported the lack of workplace protocols or the employer’s outright refusal to follow CDC and state guidelines or orders. These employees contend that they lost their jobs as a result, either through dismissal or because of a work environment so hostile that they had to resign. Some employees also claim they were terminated for taking a leave that was necessitated by their employer’s failure to provide COVID-19 precautions.

Employers can help protect themselves from these claims by being cognizant of the ever changing safety guidelines and orders, and ensuring they have an appropriate plan for return to work. Seyfarth has developed Return to Work Guidelines to assist with this process, and it has a dedicated team of attorneys on its COVID-19 Task Force who monitor legal and safety developments so that employers can ensure appropriate protocols are instituted, and the workplace is as safe as it can be in these trying times.

Excuses, Excuses: COVID-19 as a Pretext for Termination

In the second category of claims, employees contend that they were discriminated, harassed, or retaliated against because they belong to a protected class, even though the company has explained their job loss in terms of COVID-19’s impact on the business. These employees claim, in other words, that employers have used COVID-19 as an excuse to get rid of unwanted employees.

While it’s difficult to prevent these types of claims, employers can prepare to defend them by taking appropriate steps up front, and following best practices (some of which we have addressed here). Most importantly, employers should ensure that any layoffs stemming from COVID-19 are determined through non-discriminatory methods that do not unintentionally affect one group of people more than another. The same careful preparation is helpful when employers need to reduce salaries or change compensation plans.

Don’t Be Duped: Accommodation Requests in COVID Times

As the pandemic drags on and schools go back in session, accommodation requests will be the new trend of the day. Employees will want time off, modified schedules, or work-at-home arrangements in order to care for someone who is ill, to care for children whose schools have gone remote, or to protect themselves because they consider themselves at risk and are anxious about returning to the workplace.

Employers must carefully navigate these requests in light of the Families First Coronavirus Response Act, as well as other state, county, and local sick leave or safety ordinances (a few of which we have blogged about here). Employers will also face increased pressure to determine which job duties are absolutely essential, as some high-risk employees may contend they are unable to participate in face-to-face meetings, or require modified hours because of childcare needs or other hardships. Employers must strike the careful balances needed to accommodate employees while meeting business needs. Although these types of claims make up a small portion of current litigation, we anticipate they will increase as more companies return employees to the workplace.

Workplace Solutions

COVID-19 has already re-shaped the landscape of employment litigation and workplace policies. It will only continue to do so as state and local regulations evolve and as employers and employees alike find new ways to meet business needs. We will continue to monitor the shifting litigation landscape, both in California and nationally, to provide guidance for clients preparing for further success in the COVID-19 setting. If you have any questions, be sure to visit Seyfarth’s Beyond COVID-19 Resource Center, and please do not hesitate to reach out to your Seyfarth counsel.