Jim Swartz, partner with the law firm of Seyfarth Shaw LLP, discusses the findings of new research into emerging trends in COVID-19-related employment litigation.

With the coming of the pandemic come the inevitable lawsuits, and the flood of employment-related litigation has only just begun. The initial wave of cases largely involves employees claiming to have been placed into unsafe work environments. Additional claims allege failure to accommodate disabilities, discrimination against older workers, and disputes over wages and working hours. In the case of the last, arguments often center on how employees are being paid when they work from home or other remote locations.

The burden of proof in such cases can be heavy. How do plaintiffs prove that they were infected with COVID-19 while on the job? Swartz says state courts tend to be more open to considering such claims, which might range from negligence to wrongful death. There, the big issues will center on causation, how the disease was contracted, and whether it was “reasonably foreseeable” for the complaining employee to get it on the job.

The law provides traditional criteria for determining negligence, based in part on what “standard of care” the employer owes its employees. Typically, the decision is framed by rules issued by the Occupational Safety and Health Administration, as well as other federal and state authorities. In response, Swartz says, many employers are taking “extraordinary” measures to protect their workers from infection, even to the point of exceeding regulatory guidelines.

Many of the lawsuits are likely to come in the form of class actions, but what constitutes a legitimate class for that purpose could be subject to dispute. For a wage-and-hour claim, it will likely consist of a group of employees with the same employer, subject to federal and state definitions.