Posted on 02/08/2022 5:58:24 PM PST by DoodleBob
Covid-19-related lawsuits against employers accelerated early in 2021 and maintained a steady pace throughout the year, but some new pain points for employers emerged in the fourth quarter that could foreshadow challenges on the horizon.
According to law firm Fisher Phillips LLP's Covid-19 litigation tracker, there were at least 2,878 Covid-19-related employment lawsuits filed in 2021. That represented a significant jump over the 1,341 cases filed in 2020 when the pandemic was still in its earliest stages.
The pace of lawsuits didn't significantly increase after it picked up steam in early 2021 — it hovered around 240 cases per quarter all year.
But a breakdown of the most prominent case types suggests that steady stream of litigation could continue because they are tied to issues employers will be grappling with throughout 2022: most notably, vaccine mandates and return-to-office plans.
Experts say both issues are fraught with potential landmines — due in large part to frontline managers being unaccustomed to some of the scenarios they are now facing, such as religious-exemption requests for vaccines or remote-work accommodations for individuals with pre-existing conditions.
Employment discrimination (26%) and disputes tied to remote work (24%) were the most common case types, but the data showed substantial growth in vaccine-related litigation starting after the Food and Drug Administration gave full approval to the Covid-19 vaccine, sparking an increase in vaccine mandates and various penalties for unvaccinated employees.
Daniel J. Moore, leader of the labor and employment practice group at Harris Beach PLLC, said human resources professionals are proving their worth in this environment.
Moore said employers that lack dedicated HR personnel are struggling with some of the new issues sparked by Covid-19 — not to mention the labyrinth of often conflicting rules and regulations across various locales.
"It's tough to be an employer in the U.S. right now. No doubt," Moore said.
While Covid-19 litigation is expected to continue in the years to come, experts say there are several best practices for employers looking to avoid some of the most common legal headaches.
1. Avoiding workplace discrimination
Attorneys say Covid-19-related discrimination cases could arise on multiple fronts, but particularly when it comes to Covid-19-related exemption or accommodation requests.
Employers may receive those requests regarding vaccine mandates, Covid-19 testing and remote work, among other issues.
Best practices for navigating those requests include establishing policies and procedures for handling those requests and training managers to handle them. Many frontline managers may be unaccustomed to religious-exemption requests, so that training is crucial.
Moore said companies that have HR professionals that can spearhead an effective communication strategy that emphasizes transparency are ahead of the game.
Another key is treating employees consistently and avoiding the temptation to play favorites based on performance or other factors.
Experts said it is understandable companies may want to make accommodations for star performers or top sales representatives. But, as Ballard Spahr LLP Attorney Jay Zweig previously told The Playbook, it’s best for companies to take a position-by-position approach and to be consistent with how workers doing those roles are accommodated.
“When you take it person by person within the same job, then you do run into potential unintended discrimination issues,” he said.
2. The looming return-to-office issue
The Delta and Omicron variants put many office return plans on the backburner in 2021 and early 2022. But, with Covid-19 cases once again on the decline, many businesses may attempt to call employees back to the office like they did in the spring and early summer of 2021.
Given the lingering disconnect between employees and employers on the return, that may lead to more friction and potential lawsuits that could arise from workers who don't want to return.
In general, employers can require workers to return to the office, but there are some exceptions.
Some employees are requesting remote work as a medical accommodation, which can be a thorny issue for employers because nearly two years of remote work has made it more difficult for businesses to claim remote work isn't a reasonable accommodation.
Employment attorneys suggest transparent and consistent policies, advance notice of return plans and one-on-one conversations with employees to identify potential compromises.
Experts say it's important to avoid policies that result in creating different classes of employees — such as enforcing policies that would expose onsite employees to more training or career development opportunities.
Josh Davis, a director at law firm Goulston & Storrs PC, said there are some risks that need to be mitigated when expanding remote-work opportunities due to Covid-19 concerns or other factors, such as potentially creating a de facto class structure where those who are in the office advance more quickly through the organization.
In that scenario, if women chose to work remotely at a significantly higher rate, it could open the door to discrimination claims.
"That's the type of thing that keeps employment lawyers awake at night," Davis said.
3. Vaccine litigation on the rise
Back in September, Fisher Phillips Partner James Glunt predicted vaccines could be the next frontier in Covid-19 litigation, and that prediction did come to pass.
More than 90% of vaccine-related cases have been filed since September. With the Occupational Health and Safety Administration withdrawing its mandate-or-testing rule for large employers, employers could face more resistance from workers as they seek to implement mandates without the cover provided by the federal government.
To date, courts have upheld employers' rights to mandate the vaccine, but employers could still face associated discrimination claims arising from their vaccine policies — underscoring the need for training on accommodation issues.
Additionally, companies with multiple locations need to be aware that state and local laws have popped up that could limit their options for vaccine mandates or what they can ask employees about their vaccination status. That means policies may need to vary from office to office.
"For employers with operations across the country, creating a vaccination policy for the entire workforce will be challenging, if not impossible, given these conflicting requirements," said Amy Kett, senior associate and member of Hogan Lovells.
Given the circumstances and the uncertainty of the Covid-19 era, experts say businesses would be wise to search for common ground with employees, rather than taking a my-way-or-the-highway approach.
Todd Stanton, founder and president of Stanton Law, previously told The Playbook his firm has been encouraging clients to be "unreasonably reasonable" as they navigate these challenging waters.
That could include encouraging the vaccine rather than mandating it or finding ways to be flexible on issues like remote work.
2024…
“Have you or a loved one been the victim of an adverse reaction to the Covid vaccine? You may be entitled to financial compensation.”
Right?
Two coworkers of mine, one developed Bells Palsy and a nasty left side facial tremors after Pfizer x 2. The other, well his funeral is this Saturday. J&J x 1...he had a stroke and docs detected clotting in his chest area. He came back to work after his stroke, then apparently had another stroke. His Obituary says he died of “Severe Brain Trauma”.
My corp is still coercing employees to get fully vaccinated or test weekly to keep your badge access active. Just pisses me off. So, every Saturday I have to leave the house and test.
They can take those vaccines and shove them....well, you know. I’m not putting that so called vaccine in my body. Besides, I have natural immunity.
I know of employers who made vaccination a requirement for hiring. That may have been an expensive mistake with an unknowable number of potential victims.
This is the one time I hope that trial lawyers wreak havoc. Employers who mandated this garbage need to be so traumatized by the consequences of their insanity that they never even consider doing something like that again.
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