One of our fabulous speakers, Brendan Begley, from Weintraub | Tobin, wrote this post (below) for their blog and I wanted to share it with you. We hold programs for both plaintiff’s and defense attorneys, and usually have both speaking at our litigation related programs. The below post is from the defense perspective, and will be valuable for all types of attorneys who may need to deal with this subject or these types of suits.

Brendan is teaching at/taught at our August 2020 Two-Part Webinar on “Covid-19 Impending Employment Litigation: ​Liability, Privacy and Arbitration – the new dos and don’ts for both sides of the aisle” program.  As the title suggests, we will have both plaintiff and defense attorneys speaking to provide a good variety of perspectives and anyone who needs to know more about this, will want to attend. It is an online program, on August 25 and 27.

Read on below, for a thorough analysis of the issues, originally appearing on Weintraub’s Labor and Employment Law Blog.

Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19
May 28 2020
by Brendan J. Begley

The Labor & Employment Law Blog

As workplaces begin reopening in the coming weeks, attorneys are predicting a rash of lawsuits by employees against their employers related to the COVID-19 pandemic.  It seems clear that workers-compensation preemption may immunize employers from most civil actions alleging that employees became infected with the virus on the job.  However, other types of employee lawsuits may reach fever pitch.
There does not appear to be any vaccination to alleviate many of the anticipated claims.  Still, just as good hygiene practices may help flatten the curve of the actual coronavirus, good employment practices can help reduce the incidence of such lawsuits in your workplace.  Here are four types of employment claims that are likely to spread like a contagion as employees are expected to (or actually do) return to their jobs, along with some inoculations that employers should consider:

Disability Claims

According to at least one media outlet, the head of the U.S. Equal Employment Opportunity Commission’s New York office reported this week that charges accusing employers of failing to accommodate workers’ disabilities are outpacing any other allegation tied to COVID-19 in the Empire State.  Employers should anticipate similar developments here in the Golden State.
Indeed, California’s Fair Employment and Housing Act (“FEHA”) and its federal counterpart, the Americans with Disabilities Act (“ADA”), both prohibit disability discrimination and require employers to provide reasonable accommodations to disabled employees.  An ounce of prevention – by engaging in the interactive process (from a safe distance) with infected or otherwise disabled employees to identify reasonable accommodations – often is more economical than the pound of cure that would come from prevailing in a failure-to-accommodate lawsuit.

In this regard, employers should remember that each request for an accommodation must be analyzed independently, and that a leave of absence may constitute a reasonable accommodation.  Thus, if employees request a leave of absence, either to get over their own COVID-19 infection or to reduce the risk of being exposed to the coronavirus due to some preexisting disability that puts them at greater risk, serious thought must be given to fashioning a workable accommodation.

Some employers may find respite in the notion that a coronavirus infection might not constitute an actual disability under the ADA or the FEHA, as the illness typically impairs its victims moderately or for only a short duration of time.  But this brand of comfort is often an ineffective placebo and not a recommended treatment to prevent the spread of disability lawsuits.  That is because the effects of a COVID-19 infection may be more long-lasting or create a more severe impairment for some individuals.  Thus, it would be a mistake for an employer to assume that such an infection can never amount to a protected disability.
At the same time, both the FEHA and the ADA prohibit employers from discriminating on the basis of a perceived disability.  Thus, it is foreseeable that some employers might decide to treat certain workers differently than others because they believe certain workers have some other actual or perceived medical condition (e.g., a persistent cough, or diabetes, or an immunodeficiency, or Chronic Obstructive Pulmonary Disease).

Employers may worry that letting such vulnerable employees return to the job or interact with coworkers might make them more susceptible to getting or spreading COVID-19.  While treating such employees differently in this manner may seem (or even might actually be) an act of caring and concern that would rival Florence Nightingale, such actions can lead to costly challenges in court (especially if they are applied in a clumsy fashion).
Disability harassment is another type of claim that employers may anticipate.  One way this type of claim may arise is when coworkers, managers or supervisors develop a notion that a particular employee was (or is) infected with coronavirus and spread (or is spreading) the sickness to the workplace.  If such coworkers, managers or supervisors are allowed to harass, insult or ostracize an employee on that basis, the employer may find itself in need of some urgent care from lawyers.

Tameny Claims

The so-called Tameny claim is named after the California Supreme Court’s decision 40 years ago in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.  Under the high court’s ruling in that case, a worker may pursue a lawsuit when he or she alleges that the employer terminated his or her employment in violation of some public policy.

It is difficult to tally how many Tameny claims are spreading in California, as the administrative agencies that handle claims of disability discrimination (or other types of discrimination, harassment or retaliation) typically are not responsible for investigating a Tameny claim.  So we may not know for many months how many Tameny claims have been filed in court; nonetheless, there is good reason to think the number will be high.
Keep in mind that California has a public policy that requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.”  (Cal. Labor Code, § 6400.)  Also bear in mind that California has a public policy that prohibits employers from “preventing an employee from disclosing information to a government or law enforcement agency,” or to a manager or supervisor, “who has authority to investigate, discover, or correct the violation or noncompliance.”  (Cal. Labor Code, § 1102.5.)

With those public policies in mind, there are two general ways to become exposed to a Tameny affliction.  One arises when an employee is fired for refusing to execute some task on the job that actually would be unlawful.  The second arises when the employee is fired for complaining about what he or she reasonably perceives to be unlawful activity in the workplace (even if the activity in question turns out to be legal).
Regarding the first variety, it is easy to foresee the following scenario developing:  An employer directs an employee to return to work and the employee refuses and is fired.  If the employer instructed the employee to return before the government lifted restrictions for that specific workplace, terminating the employee for refusing to return may violate a public policy.  Likewise, if the employer waits until the restrictions lift but then fails to enforce regulations requiring social distancing or sanitary practices or the donning of personal protective equipment (“PPE”), firing an employee for refusing to work under such conditions may also be in violation of public policy.

Turning to the second type of Tameny ailments, it is equally easy to anticipate these scenarios occurring:  An employer directs an employee to return to work either before the restrictions are lifted or after the restrictions are lifted but without implementing or enforcing policies for social distancing, sanitation, or PPE.  The employee complies, returns to the job, and performs his or her work, but not quietly or without protest.  Instead, the employee complains about the workplace conditions, either to a governmental agency or a supervisor, and is subsequently fired.  Terminating an employee for complaining about such workplace conditions may be in violation of public policy.

One aspect of many Tameny claims that make them look less severe than other types of claims is that they often do not result in the employer having to pay the employee’s attorney fees.  However, given the other undesirable symptoms and bad side-effects that such lawsuits can trigger (e.g., lost productivity due to litigation, or the risk of emotional-distress and even punitive damages), that is a bit like telling a sick patient suffering from simultaneous chills and sweats that a fever of 103.8 degrees is not as bad as one that is 104 degrees.

Leave Claims

There are a number of federal and state laws that require various employers to provide a certain amount of protected leave to covered employees; for example, the federal Families First Coronavirus Response Act (“FFCRA”), the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).
The FFCRA was passed just this year to provide workers with protected leave if they have been impacted in various ways by the coronavirus and related shelter-in-place orders.  It has already resulted in what some might call an epidemic of lawsuits where employees have claimed that their employer interfered with their protected leave, denied them benefits, or fired them in retaliation for requesting leave.

Meanwhile, the FMLA and the CFRA are not geared specifically for coronavirus-related leaves, like the FFCRA is, but those laws may still protect such leaves of absence.  Making things more complicated, there may be overlap between these leave entitlements and some employers may be subject to all of these laws, while others are subject to some or none of them.

It is very probable that employers will be faced with many more leave requests, either to care for someone who has been infected with COVID-19 or to stay at home with a child whose school or daycare facility remains closed while some restrictions are lifted.  Of course, employees also may request leave to deal with other health conditions that deteriorated while they were unable to get routine medical treatment while sheltered in place.  Each leave request should be given serious consideration.

Discrimination Claims

Whereas some employers may be struggling with too many employees in need of leave, others may be grappling with having to lay off employees due to downturns in business as a result of the shelter-in-place restrictions.  In either scenario, care must be given to how such decisions are made and serious thought must be devoted to the potential results.
Such decisions may trigger claims under the FEHA or its federal counterparts, Title VII of the Civil Rights Act or the Age Discrimination in Employment Act.  Those laws bar making employment decisions on the basis of certain protected categories; for instance, age, race, national-origin, gender or religion.

When deciding which employees are going to be given leaves of absence, or laid off, or assigned to certain duties, consistent procedures and rationales must be followed.  Even then, under what is called the disparate-impact type of claim, a neutral policy or practice can lead to discrimination liability if it has a statistically disproportionate impact on a certain class of workers.

Inoculate Against Such Claims

There is no vaccine that will prevent or get rid of all such claims, but the harmful effects of such lawsuits can be ameliorated by following certain precautions.

First, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Second, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.

Third, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Fourth, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy or the employee’s complaints about reasonably perceived violations of some public policy.

Fifth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.
Just as there presently is no medicine that is sure to eradicate the current pandemic, there is no one-size-fits-all regimen that will completely wipeout such employment claims.  Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.
Finally, it seems obvious that getting prompt medical attention may stem the more serious effects of a disease; by the same token, obtaining early legal advice may decrease the incidence or cost of these exorbitant types of lawsuits.