Commuters arrive at Grand Central Station with Metro-North during morning rush hour on June 8, 2020 in New York City.
Angela Weiss | AFP | Getty Images
Covid-related litigation and complaints have steadily risen throughout the pandemic, with California and New Jersey, seeing the most filings, according to Jackson Lewis, an employment and labor law firm that tracks these numbers.
Experts say it’s likely to increase as courts wade through a backlog of cases and government agencies deal with pent-up claims.
“The employment practices liability carriers are very mindful of the additional claims activity that hasn’t yet materialized,” said Kelly Thoerig, a U.S. employment practices liability coverage leader at consulting firm Marsh McLennan.
Employers are walking a tightrope in organizing a return to work, fraught with liability and risk, she said.
Three key things employers must consider in order to protect against litigation:
Management needs to evaluate whether they’re discriminating against protected protected classes of employees when they make decisions about who to bring back to the office first.
“Who did you let go? Who did you send home?” she said, running through a list of critical questions. “Who is first in line to be allowed to come back? Or who are you requiring to come back?”
When employees come back, companies need to make sure it’s a safe environment. That raises additional questions about whether workers should wear masks, or if a company should require a Covd-19 vaccination.
Although it’s legal for employers to mandate vaccines for workers, it may not be advisable, Thoerig said. This is partly because of “downstream liability if an individual were to have a serious reaction to or complication as a result of the vaccine,” she said.
On the other hand, some employees or customers may demand businesses require vaccines.
“This provides employers with different but very real business and legal concerns: Are they doing enough to keep their employees and customers safe?”said Frank Alvarez, co-leader of Jackson Lewis’ disability, leave and health management practice. “Are they managing privacy concerns, employee medical choice and the countervailing employee relations issues between those who are vaccinated and those who are not?”
Thoerig said she urges her clients to use incentives to coax resistant employees to get the vaccine.
For example, Wynn Resorts demands weekly Covid-19 tests with negative results for its workers who have not been inoculated. This gives an employee an incentive to get a shot.
The U.S. Equal Employment Opportunity Commission data shows an uptick in disability discrimination claims filed with the agency traduring the pandemic.
Insurer Travelers said it suspects accommodation conflicts are driving the increase. For example, if an employee asks for the ability to continue to work from home because he has a condition that puts him at a heightened risk if he contracts Covid-19. If the request is denied, the employee may sue for the accommodation.
This situation could also arise if an employee says she can’t take the vaccine because of an allergy. If the employer mandates it anyway, she may say her employer discriminated against her because of it.
“The notion that certain individuals or classes of people or even individual employees are being favored or disfavored over others, immediately should raise should raise concerns,” Thoerig said.
As employees are called back into the office in greater numbers, they may also have a strong argument, Thoerig said.
“We’ve effectively done our job from from our home office, from our basement, for the last 12 to 14 months. And why is that not a reasonable accommodation when I’ve been just as productive as I have from home?” she said.
Thoerig has told clients to be as flexible as they can be in granting requests for accommodations.
“Employers are trying very hard to juggle all of these considerations,” Alvarez said. “The business community has never really faced a situation where the law is so uncoordinated and provides such little guidance on potential legal exposures.”