Written by Frank Lopez
Nearly 17 months ago, as the Covid-19 pandemic swept the U.S. and triggered the temporary shuddering of countless businesses, it was uncertain how they would continue to operate.
As they came back online, businesses owners had to deal with a myriad of new health and safety mandates. They also struggled to find workers.
With new rules comes pitfalls of legal liability for failing to comply, making employers a ripe target for lawsuits.
According to the Covid-19 Employment Litigation Tracker, a tracker and insight study by major U.S. law firm Fisher & Phillips, there have been 2,956 employee vs. employer cases across the nation that were a direct result of the Covid-19 since February 2020.
California alone has 767 cases since March 2020.
Though employers both large and small have faced legal action, local attorneys have not seen a significant increase in lawsuits since the pandemic began.
“The rules continue to change, and we are facing a lot of questions and uncertainty going into the winter,” said Ian Wieland, attorney and a founding shareholder at Sagaser, Watkins, and Wieland PC.
Wieland said some of the issues he gets the most questions about are CAL/OSHA emergency temporary standards and the pros and cons of mandating vaccinations for employees, especially clients in the packing and food processing industry.
On July 26 the Department of Justice sent out a memo that confirms that the “emergency use” status of vaccines does not prohibit employers from requiring their employees to receive the Covid-19 vaccine.
The DOJs position is not legally binding, however.
Wieland said that the law firm was not seeing many lawsuits against its business clients, but as time went on, employees did make allegations against employers regarding wrongful termination and retaliation for reporting unsafe working conditions.
“All the ones [lawsuits] that I’ve seen so far are completely frivolous and coming from someone that was laid off or terminated for cause and their attorney or former employee is trying to raise these issues to extort the employer out of settlement money. I’ll probably see one that has merit, but so far that’s all I’ve been seeing,” Wieland said.
Wieland said he does have clients he is defending against CAL/OSHA citations issued at the beginning of the pandemic when rules were not as clear.
It has been a challenge for business owners to stay on top of all of the legal changes since the pandemic began, but Wieland advises any business owner to seek legal counsel when issues arise.
Mario Zamora, partner at Griswold LaSalle Cobb Dowd & Gin LLP in Hanford, said that the firm hasn’t seen many lawsuits against employers since the pandemic began.
Zamora said that there was a definite drop of the number of cases in the early months of the pandemic as more businesses shifted to work from home, reduced their hours or temporarily shut down.
“There were a lot of normal work things that weren’t happening just because there wasn’t a work place for employees to go to,” Zamora said.
The court system was also stalled by the pandemic, with court houses being shut down and new rules and procedures set in place slowing down court processes. During the pandemic there was also more focus on conducting criminal trials while civil tries were pushed back.
Zamora said he feels that litigation in the courts is getting back to normal, but employers are still facing issues with worker shortages, meaning less activities in the workplace that could lead to litigation.
Griswold LaSalle Cobb Down & Gin represents a lot of landlords, with many conversations about the eviction moratorium and discussing rules about back rent and when it can and can’t be collected.
The Law Offices of Michael J. F. Smith in Fresno are not seeing a high number of lawsuits against employers, said attorney Michael J. F. Smith.
Last year, Smith said that there were lawsuits against employers who didn’t want to change their work operation processes, such as food processing facilities, but also didn’t know how to separate their employees and maintain an efficient workflow.
“There was a lot of ignorance on what would work and what wouldn’t and there was no vaccination available, so there was fear on the side of employees, and disputes on whether the employers were taking the adequate steps to protect their health,” Smith said.
Smith mentioned receiving calls from employees who were refused time-off after testing positive for Covid-19 and being threatened with termination, and another where an employee was fired because they didn’t have their mask on while they were washing it out at a time when there was a mask shortage.
Smith said there were issues on both sides, with employees not wanting to follow certain rules and employers not wanting to provide certain protections or accommodations for employees.
“Employers should start off with a position of trying to be reasonable, but that’s going to mean doing whatever they can to keep people safe but also take into account that people have strong opinions, and medical conditions that have them nervous about taking the vaccine. First you have to try and accommodate in a reasonable way,” Smith said.