Employment Law Developments To Monitor In 2021: COVID-19-Related Employment Litigation And Trends

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As 2021 begins, Jackson Lewis continues to work with employers to help them understand, prepare for, and handle the impact of COVID-19 on the workplace.  In addition to advising and counseling clients, Jackson Lewis attorneys are handling COVID-19-related litigation matters nationwide, and are tracking COVID-19 employment litigation trends with Jackson Lewis’ interactive COVID-19 Employment LitWatch.

Employers across the country face a variety of COVID-19-related lawsuits. Common claims include, but are not limited to:

  • Retaliation against an employee who raised health or safety concerns or requested time off or accommodations;
  • Failure to accommodate an employee’s alleged disability (or serious medical condition);
  • Violations of family and medical leave laws; and
  • Discriminatory treatment based on age, disability, gender, pregnancy, as well as race and national origin.

COVID-19-related employment lawsuits likely will increase in 2021, especially when employers begin recalling some (but not all) laid-off or furloughed employees, increasing hours or shifts for some (but not all) employees, or requiring more employees to report to work in-person.

Diving deeper into the data with Jackson Lewis’ COVID-19 Employment LitWatch, JL attorneys can identify trends that may play an important role in planning for the year ahead.  By way of example, as of January 13, 2021:

  • Approximately 1,360 COVID-19-related employment lawsuits have been filed in state and federal court since March 2020, including 70 class action Of the 1,360 cases, approximately 76% include allegations of wrongful termination.
  • Since Labor Day 2020, non-class action COVID-19-related employment lawsuits have more than doubled, with claims of discrimination and retaliation trending up. Disability leave claims have remained steady but declined as a percentage of overall claims.  Allegations of workplace safety are slowing down.
  • States with the most lawsuits to-date are California (298), New Jersey (184), Florida (115), New York (96), Ohio (80), Texas (77), and Michigan (54). Since December 1, 2020, however, states with the most lawsuits (in descending order) are California, New Jersey, New York, Florida, Texas, Ohio, and Pennsylvania.
  • Approximately 35% of all COVID-19-related employment lawsuits nationwide have been filed in California and New Jersey, and approximately 92% of those suits were filed in California and New Jersey state courts. Outside of California and New Jersey, approximately 48% of lawsuits were filed in federal court and 52% in state court.
  • Healthcare and manufacturing industries have been hit the hardest by single-plaintiff lawsuits, while hospitality, retail and consumer goods, and transportation have been hit the hardest by class action lawsuits.
  • Approximately 43% of class action complaints allege wage and hour violations, while approximately 38% allege workplace safety (24%) or disability leave violations (14%).
  • Of the 70 class actions filed to date, approximately 61% were filed in California (29) and Florida (14). Outside of California, 73% of class actions were filed in federal court. Only 21% of California’s class actions were filed in federal court.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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