Potential Employer Liability Stemming from the COVID-19 Pandemic

Risk Management Magazine (RMM)

PUBLISHED ON: November 26, 2021

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In March 2020, the COVID-19 pandemic forced many employers to adjust to remote work to comply with their state’s stay-at-home orders. Long after those orders subsided, work-from-home has persisted as a partial or total response to pandemic risks. As companies continue reopening for in-person operations, businesses gearing up to return to work face a minefield of potential liabilities relating to discrimination, leave, workers compensation and retaliation, among others. 

Employment litigation stemming from the pandemic gained steam in 2021, according to a COVID-19 Employment Litigation Tracker maintained by the law firm Fisher Phillips. In the first eight months of this year, an average of 253 employment suits per month were filed, compared with 159 per month in the last eight months of 2020. Case filings tend to ebb and flow with the disease itself, and accelerated this past summer as the Delta variant raged. As of September of this year, more than three-quarters of suits filed were clustered in three issue types, according to the tracker: cases focused on remote leave/work-from-home issues (28%), cases alleging employment discrimination (26%) and retaliation/whistleblower allegations (24%). Through November 23 of this year, the tracker shows more than 3,900 COVID-related employee suits filed to date. One positive note for employers is that only 3% of cases filed in the first eight months of 2021 are class actions.

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