For the last several months, employers have been forced to learn how COVID-19 spreads, how to maintain or resume safe work environments, and how to navigate a complex web of new and existing laws and regulations implicated by the pandemic. Employers have also had to contend with a growing wave of COVID-19–related employment litigation.

A review of court filings in the United States from late March 2020 through early May 2020 reveals numerous employment lawsuits based on COVID-19–related claims that fall into the broad categories set forth in the following chart.

Given that the foregoing summary relates only to filings during a timeframe in which most states had shelter-in-place or stay-at-home orders, and many employers were either not operating or only partially operating, it is likely that these types of lawsuits will increase dramatically in the coming months. Not only is actual litigation on the rise, but recent data indicates that, as of May 11, 2020, there were more than 1,100 COVID-19 whistleblower complaints filed with the Occupational Safety and Health Administration (OSHA).

In addition, many states have enacted or are considering amendments to their workers’ compensations laws that would create a presumption that employees who contracted COVID-19 did so at work, thus exposing employers to a rash of new claims for workers’ compensation benefits.

As such, employers may want to consider the following to mitigate their exposure to COVID-19–related employment claims:

• Ensuring relevant policies are up to date, including, but not necessarily limited to, policies related to non-harassment, anti-discrimination, anti-retaliation, the FMLA, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act under the FFCRA (if fewer than 500 employees), interactive process/reasonable accommodation issues, and remote work
• Educating managers, supervisors, and human resources professionals on the relevant policies and steps to take if an employee requests to utilize the policies and/or expresses concerns of noncompliance
• Preparing a COVID-19 workplace safety plan, communicating the plan to all employees, ensuring compliance with the plan, investigating and addressing any reported concerns, and documenting the investigation process and outcome
• If conducting health screenings, temperature checks, and/or other testing such as viral testing, antibody testing, or oxygen testing, ensuring compliance with social distancing requirements, confidentiality with regard to any records created, and the mandates of applicable privacy laws (note that restrictions on permissible testing exist in some jurisdictions)
• Documenting steps taken after an employee reports a positive and/or presumptive COVID-19 diagnosis and complying with all state guidelines and Centers for Disease Control and Prevention recommendations on quarantine timeframes and return-to-work parameters;
• If adjusting compensation, providing notice of changes as required by applicable state laws
• If reducing the workforce, providing appropriate notices and ensuring selection criteria is nondiscriminatory
• Staying abreast of new legislative enactments