Protecting employees in the midst of increasing litigation

August 19, 2020

From the early days of the COVID-19 pandemic, employers have played a critical role in their communities through their efforts to protect employees. While businesses have always been responsible for maintaining a safe workplace, the obligation has grown increasingly complex with evolving guidance from federal and local governments as well as agencies like the CDC, OSHA, and the EEOC.

Many organizations have done all they possibly can to promote employee health and adjust leave policies, educate teams on new processes and behavior, and ensure the working environment is as safe as it can be. However, in some cases, individuals believe their employers didn't do enough.

A growing number of complaints and lawsuits have been filed by individuals arguing that their employers did not adequately respond to COVID-19. As of August 13, law firm Fisher Phillips documented 487 employer-employee litigation related to COVID-19 in the US, including 49 accusing employers of “Negligence/Wrongful Death” or maintaining an “Unsafe Workplace.” The Wall Street Journal has highlighted some of the most tragic cases, where families of deceased employees have sued employers like Walmart Inc., Safeway Inc., and Tyson Foods Inc, stating that the organizations failed to adequately protect their loved ones.

According to law firm Ogletree Deakins, employers looking to mitigate the risk of COVID-19 related lawsuits should take actions such as reviewing internal policies on topics ranging from leave to anti-discrimination, educating company leaders on such policies, deploying a COVID-19 safety plan, ensuring confidentiality and appropriate protection in any form of health screening, and actively monitoring evolving legislation. For a full list of recommendations, see Ogletree Deakins' FAQs on employment legislation and litigation.

Most importantly, the pandemic has offered employers an opportunity to serve and protect employees in a unique and profound way. The choices employers make and the effectiveness of their policies and communication have the potential to meaningfully impact the physical and emotional health of employees, and employers should seize the chance to do all they can for their teams.

Commentary from TeamSense should not be construed to be authoritative legal or public health guidance. Organizations should follow the latest guidance from relevant governmental and public health authorities and seek counsel from appropriate Legal, HR, and EHS professionals.