Employers have no shortage of things to worry about these days. And as more employers resume operations, one increasingly-acute concern is managing their civil liability with regards to COVID-19. But because this is largely uncharted territory, it’s hard to foresee how this will play out in the legal system.
Nevertheless, as we approach one full year of wrestling the pandemic, we do have some data to draw from. We can survey the lawsuits filed by workers in 2020. We can pinpoint what legal protections that are available to at least some employers.
And, of course, we can review the basic best practices for maintaining compliance, minimizing liability, and keeping the workforce healthy. We have a long way to go, but we’re much smarter now than we were a year ago. Here’s what we know so far.
Fact: 1,005 COVID Lawsuits Were Filed in 2020
Earlier this month, employment law authority Seyfarth Shaw LLP released its 17th Annual Workplace Class Action Litigation Report, an in-depth study of employment litigation in 2020.
According to the report, COVID-19 triggered at least 1,005 workplace class action lawsuits, spanning 47 states and 28 industries. (The top three industries: healthcare, business services, and manufacturing.)
These lawsuits took various forms. Some were centered around discrimination, such as layoffs that had a disparate impact on protected employee groups. Others concerned failure to provide leave as mandated by the FMLA, FFCRA and other jurisdictions. Still others concerned wage and hour issues.
However, roughly one-third of the class actions involved failure to provide a safe workplace and related issues of retaliation. For example, some accused employers of failing to follow CDC recommendations—i.e., preventing workers from washing their hands and failing to sanitize work stations.
However, because few of these cases have reached the certification stage, we have yet to see if “failure to protect” will be ruled a viable claim. That said, Seyfarth Shaw firmly predicts that COVID class action lawsuits will only “expand and morph” in 2021.
Existing COVID Civil Immunity Laws for Employers
Currently, whether an employer has civil immunity against COVID-related lawsuits largely depends on where it operates.
To date, there is no federal civil immunity law protecting employers against COVID liability.
Last July, Senate Republicans introduced the Safe to Work Act, which sought to provide employers with a COVID “liability shield.” Not only did the bill failed to pass (it was excluded from the $900 billion stimulus bill passed in December, 2020), with Democratic majorities installed in the House and Senate—and President Biden in the White House—it is highly unlikely to advance.
In the meantime, 11 states have passed broad civil immunity statutes protecting businesses against coronavirus-centric lawsuits. These include Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming. (Other states—Alaska, Kansas, Kentucky, Massachusetts, New Jersey, and New York—have enacted legislation providing more targeted liability protections to healthcare workers and facilities.)
While these laws vary greatly in terms of which employers/industries are covered and what actions are immune from litigation, all do preserve employer liability for gross negligence and extreme misconduct—and they share other common limitations as well.
For example, although employers may be immune from some liability, they can still be sued by workers. That means they can still be required to bear the expense of mounting a legal defense, as well the public relations nightmare such a lawsuit would bring.
In addition, many of these laws grant civil immunity to businesses that follow public health guidance—but, given shifting and sometimes conflicting guidelines at the federal, state and local levels, this could be hard to prove. So, even in states with civil immunity laws, employers still shoulder some risk.
How to Guard Against COVID-related Workplace Lawsuits
Obviously, the best way to limit COVID liability is to be meticulous in complying with rules and best practices designed to keep your workplace free of coronavirus.
That means staying on top of state and local regulations—such as state COVID safety training requirements—and monitoring evolving federal standards. We already know that OSHA will be issuing tougher workplace standards in the very near future. And it means leveraging your HR software to help your workforce practice sound COVID prevention.
For example, EPAY HCM offers a highly-accessible online learning management system (with expertly-developed courses on COVID training). It features an increasingly-popular mobile time-tracking app that lets workers punch in and out from their personal smartphones—no congregating around time clocks.
Our time and labor system allows employers to serve up health and safety questions to workers punching in and out, reinforcing COVID protocols. And thanks to our advanced reports and analytics, employers can track and document the steps they’re taking and how the workforce is responding—a powerful defense against “failure to protect” lawsuits.
In short, at EPAY, we’re obsessed with helping our customers stay in compliance and out of court, with regards to COVID and other liabilities. If this is your priority, too, visit our Coronavirus Resource Center and watch our two-minute video tour.