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Legal Alert

Emerging Trends In COVID-19 Workplace Litigation

8.5.20

As of this writing, employees from across the country have filed more than 430 COVID-19-related lawsuits against their employers and former employers. Not all of these claims have focused on the Family First Coronavirus Response Act (FFCRA) — the federal legislation governing Emergency Paid Sick Leave and Emergency Family and Medical Leave — but rather a substantial number of lawsuits have alleged employer impropriety using COVID-19 as a factual backdrop. Examining some of these cases more closely, some common themes emerge. How should employers prepare for potential litigation?

Examples Of COVID-19 Workplace Lawsuits

Throughout the country, a number of employees have alleged various forms of discrimination in connection with COVID-19 layoffs and reductions in force (RIFs). The below matters are some examples of the types of claims that have been asserted against employers. Significantly, however, the following cases are in the midst of active litigation, and the employers’ positions on relevant issues (any pertinent denials of the employees’ allegations) are unknown at this time:

None of the foregoing cases directly implicate the recent FFCRA and its paid leave provisions, but they do address COVID-19 in some common ways.

Being Prepared For The Common Factors In COVID-19-Workplace Litigation

The foregoing cases share several themes and legal theories, and employers should be prepared to face them should litigation arise. First, the underlying criteria for selecting employees affected by a layoff or RIF should be ready for the limelight in the event of litigation, as such information will likely be discoverable (including in each of the aforementioned cases). For this reason, your selection criteria should be objective and based on measurable data (i.e., production, performance metrics, etc.), and you should be ready for scrutiny by a vigilant plaintiffs’ attorney.

Second, you should ensure that your performance metrics are being applied fairly and consistently, both by the same supervisor and across different supervisors. Doing so may limit the viability of discrimination or retaliation claims and further demonstrate the fairness and consistency of your practices.

Third, you should not shy away from conducting adverse impact analyses. An adverse impact concerns a widely applied employment decision (i.e., a layoff or RIF) that is based upon neutral criteria but disproportionately impacts a protected category of individuals. Therefore, as part of the layoff or RIF selection process, you should ensure that your selection criteria are not favoring or harming, for example, individuals of one race versus another.

Although the above steps may benefit you in litigation, using these strategies as preventive measures may be more preferable.

The Number Of COVID-19-Related Lawsuits Will Increase

As noted above, there have been more than 430 employment lawsuits concerning COVID-19 at the time of this publication. This number will only increase with time. You should take appropriate preventive steps not only to curtail litigation, but also provide viable defenses should such cases arise.

For further information about COVID-19-related litigation being filed across the country, you can visit our COVID-19 Employment Litigation Tracker. Our COVID-19 Employment Litigation and Class & Collective Actions section also has a listing of our litigation-related alerts and team members handling these types of cases.

We will continue to monitor any further developments and provide updates on these and other labor and employment issues affecting employers, so make sure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney or either of the authors of this publication.


This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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