MoneyTrend: Adapting to a COVID WorldCOVID-19 Employee Lawsuits and Related Claims Increasing Against EmployersBoth Federal and State Violations Being CitedBY PAUL R. PICCIGALLO AND WILLIAM H. NGThe COVID-19 pandemic has affected employers in the financial services industry in unique and significant ways. In many states, employers in the financial services industry have been deemed “essential businesses,” thus presenting unique challenges with respect to worker (and customer) safety, and issues related to furloughs and layoffs. Employers have been required to make swift and significant changes to their existing policies and practices, in some cases to ensure compliance with multiple laws enacted in a short time frame. As a result, many employers will have yet another issue to face as they attempt to maintain their businesses: COVID-19- related lawsuits.To date, over 2,000 lawsuits relating to COVID-19 have been filed in federal and state courts. These range from claims from customers relating to COVID-19 exposure, to more focused claims from employees under various federal, state and local laws relating to workplace health and safety, non-discrimination, and employment termination. As of early July, more than 317 lawsuits directly related to labor and employment violations have been filed (including 39 class action suits). Perhaps unsurprisingly, California leads the nation with 50 employment lawsuits already filed – with Florida (44), New Jersey (33), and New York (29) close behind.Financial service industry employers, as “essential businesses,” face unique risks, given that many stores remained open even during the height of the pandemic in hard-hit states such as New York and New Jersey. Indeed, there is no shortage of laws or regulations under which employers may see claims. Employers potentially are exposed to claims from employees under a number of federal labor laws as well as their state law equivalents. Given the rapid (and at times haphazard) pace at which the federal government, states, and localities, have enacted laws responding to COVID-19 and employment, there are several types of claims of which employers should be mindful.• Paid Leave: Both the federal government, by way of the Families First Coronavirus Response Act (FFCRA), and numerous state and local governments have adopted new laws, ordinances or regulations relating to paid leave for employees during the COVID-19 pandemic. Already we are witnessing claims from employees alleging that they were denied leave to which they were entitled under these new laws, or retaliated against for seeking leave. Employers should monitor developments in this area closely, and make sure their leave programs are coordinated to meet varying federal, state, and local requirements.• Discrimination Claims: Historically, claims of discrimination have increased as unemployment has gone up. Given the unprecedented levels of COVID-related unemployment, we see no reason to think that this historical trend will not continue. The Americans with Disabilities Act, which governs what medical information employers can seek from employees, and requires employers to “reasonably accommodate” employees with disabilities, seems to be a likely potential source of COVID-19 claims. That said, laws that prohibit discrimination on the basis of age, pregnancy, and any other basis, may also see an uptick in claims. Particularly where employers are beginning to return their employees to the workforce, or returning temporarily furloughed employees to the workforce, they should be mindful of potential legal “pitfalls” even where they believe they are acting in an employee’s best interests. For example, the U.S. Equal Employment Opportunity Commission, which enforces federal civil rights laws, has made clear its position that employers may not prevent older workers, or pregnant workers, from returning to work if they wish to do so, even if the employer believes it is acting to protect more vulnerable workers from risk.• RIFs and Downsizing: Employers that have been forced to downsize their workforces in the wake of the pandemic should also be mindful of the federal Worker Adjustment and Retraining Notification (WARN) Act. Under WARN, an employer may be required to provide 60 days’ notice to workers when they are laid off for an extended period, or when the employer closes its business. While WARN provides certain exceptions to these notice requirements (most notably, when a plant closure or mass layoff is the result of business circumstances that were not reasonably foreseeable at the time notice was required, or when the result of a natural disaster), the applicability of these exemptions with respect to COVID-19 remains unclear. Moreover, WARN includes certain “look-back” provisions that may trigger a notice requirement even where an employer is not letting everyone go at the same time. As businesses reopen with uncertainty as to their workplace needs, they should be mindful of WARN Act obligations, as well as those imposed by state law analogues (or so-called “mini-WARNs”).These are but a few of the laws employers may need to grapple with in light of the pandemic. Other types of claims (wage and hour, workplace safety, and workers’ compensation) seem likely to follow. For example, employers instituting mandatory temperature screening policies may face claims with respect to the compensability of the time spent by employees engaging in these screenings.To date, while there has been limited action on the state front with respect to shielding employers acting in good faith from liability for COVID-19 claims, they have largely been confined to claims of exposure to the virus – there has not been significant legislation offering any type of protection for labor and employment claims in particular. Nor has the federal government yet acted on proposals to limit COVID-related liability for employers and businesses. Due to this uncertainty, employers are advised to consult with experienced labor and employment law counsel to ensure that, as the economy reopens, they are aware of their obligations not only with returning to work safely, but also with the range of state and federal laws implicated. William H. Ng, shareholder, and Paul R. Piccigallo, associate, are attorneys in the New York office of Littler Mendelson, P.C., a global labor and employment law firm. Contact them at wng@littler.com and ppiccigallo@littler.com.