Summer’s covid litigation trend expected to heat up winter
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US employers can expect a rising tide of covid-19-related workplace lawsuits this winter, lawyers at Fisher Phillips have forecast. The prediction follows an analysis of claims data collected by the firm’s covid-19 employment litigation tracker over the summer months looked at in conjunction with the effects of the surging delta variant.

Summer 2021 saw US employees file 715 lawsuits citing covid-19, an increase of 271 from between June to August 2020, according to Fisher Phillips’ data. These figures continue an upward trend in pandemic-related employment disputes, with the firm finding 253 new claims filed per month on average in 2021, compared to 159 lawsuits filed in the final eight months of 2020.

There are concerns this rise in disputes may be tied to the increase in covid-19 cases across the US. A rise in disputes over the January to March 2021 period, which saw 826 cases filed, followed the late 2020 surge of coronavirus infections. With 209 claims filed in July and 246 August 2021 (an 18% jump), the firm is predicting the start of a new lawsuit wave fuelled by the more infectious delta variant.

“We typically see a slowdown in new lawsuit filings over the summer for a number of obvious reasons,” said Jay Glunt, a Pittsburgh-based partner. “But the fact that we didn’t see much of a lull in employment-related covid litigation – and in fact saw an uptick – sends a clear signal that we could be in for a rough couple of months ahead.”

Where new cases are being filed is also illuminating. California-based employers have faced more covid-19 workplace claims (895) than New Jersey (416), Florida (232), and New York (221) combined. Other dispute hotbeds include Ohio (207), Texas (153), Pennsylvania (119), Michigan (99), Illinois (95), and Connecticut (75).

However, a deeper dive into the data suggests New Jersey is the most challenging state for employers faced with covid-19 litigation. Courts in the garden state have logged 46.84 cases filed per million residents, double that of second-place Washington, DC (22.67 cases).

Reviewing the data by sector reveals that more than one-in-five (718) suits filed to date are against a healthcare employer. Retail (310), manufacturing (259), government (218), hospitality (216), education (162), professional services (155), construction (154), transportation (137), and finance and insurance (128) complete the top-ten most sued employers.

The data also shows the three most common types of disputes to be remote work or leave issues (909 filed), discrimination (842), and retaliation or whistleblower claims (784).

Wage and hour (7%), unsafe workplace (3%), wrongful discharge (3%), negligence or wrongful death (3%), non-competition and trade secrets (1.1%), breach of contract (1.1%), CARES Act (0.8%), and WARN Act (0.8%) claims collectively account for just one in every four suits filed.

A further look at the data shows 82% of all CARES Act claims have already been resolved, and overwhelmingly through settlements or voluntary dismissals (94%) as opposed to court action. By contrast, only 18% of discrimination claims, 21% of retaliation cases, and 32% of remote work or leaves actions have been closed.

Facing 31% of these suits, employers with 50 or fewer employees have been sued at a far greater rate than their larger counterparts. Collectively, businesses with under 500 workers have been hit hardest, with more than 60% of all covid-19 workplace litigation, the most common of which are remote-work and leave law conflicts.

Fisher Phillips’ analysis suggests this may be because smaller employers have been operating in “survival mode” and, thanks to less than robust compliance systems, have been unable to keep pace with the slew of new legal obligations created over the past 18 months.

A silver lining for employers within the data is the finding that single-plaintiff actions totalled 1,970, 97% of the 2,027 claims filed in 2021, and there were only 57 class actions.

However, it should also be noted that 20 (0.6%) vaccine-related claims have recently been filed, with 33% already resolved following court dismissal. Despite the small number and quick disposal of one-third of these claims, Fisher Phillips is nonetheless predicting a nascent trend in vaccine-related litigation that may explode following President Biden’s recently announced vaccination mandate.

“With more employers moving toward benefit plan surcharges and outright vaccine mandates, we are already seeing a rise in requests for religious accommodations,” said Aymara Ledezma, an associate in the firm’s vaccine subcommittee. “Those will no doubt cause a spike in claims if impacted employees feel that adverse action has been taken against them.”

Overall, more than half (52%) of filed pandemic suits have already been closed, thanks, it is suggested, to robust case management between the parties and the courts. Almost two-thirds (63%) of cases have been resolved through a settlement, while 25% of cases were dropped, and 12% were dismissed through court action.

Accounting for nearly 70% of all closed cases, the federal courts, in particular, are handling their dockets incredibly efficiently. By contrast, 31% of state court cases have been closed; however, this is a significant increase on early 2021, when only 4% of these cases had been resolved.