There Is No Disaster That Is Not an Opportunity

Businesses reeling from losses of revenue and productivity due to the pandemic and the state and local responses to it are also facing another challenge: they’re being sued by their employees and customers. Walter Olsen reports on the bumper crop of COVID-19 lawsuits in a piece in the Wall Street Journal:

In May, as the first wave of the pandemic receded, Connecticut put out guidelines for workplace reopening. “Individuals over the age of 65 or with other health conditions should not visit offices, but instead continue to stay home and stay safe.” That seemed like a sound directive, but as lawyers soon pointed out, the state had told its private employers to violate federal law. The federal Age Discrimination in Employment Act makes it unlawful to deprive older employees of any opportunity offered to younger colleagues.

You might think being assigned to work from home at full salary doesn’t count as being deprived of an opportunity, but trial lawyers have been known to argue otherwise. An at-home employee might have fewer promotion opportunities or benefit from less mentoring. Someone could try for a class action.

That isn’t an isolated example. For some employers a reopening plan might include using antibody tests to identify which employees had Covid and recovered; given likely immunity, those persons could be a good bet for jobs where personal contact is unavoidable. But June guidelines from the federal Equal Employment Opportunity Commission count antibody testing as a breach of the Americans with Disabilities Act (ADA). The commission says tests for current infection are OK.

concluding:

And businesses can wind up sued if they do and sued if they don’t. If a customer believes he caught the virus on the premises, his lawyer will be glad to seize on testimony that you didn’t use temperature guns and let some visitors run around without masks.

In a saner world, Congress might rewrite these laws to immunize companies from liability for actions taken in reasonable response to health and safety risks, and develop provisions for granting emergency waivers in circumstances like those now. But most of these laws make minimal concessions to balancing costs and benefits. All of us—including the most vulnerable—pay the price for such moralism in lawmaking.

Let’s quantify this a bit. According to Littler, since March there have been more than 1,500 lawsuits filed against employers for labor and employment violations related to COVID-19:

California is leading the way with 335 cases filed, with New Jersey (171), Florida (139), and New York (120) following behind. The most common complaints have focused on retaliation (798), wrongful termination (482), workplace safety (386), and discrimination (363). The healthcare industry has been hardest hit by COVID-19 related employment litigation with 360 alleged violations, with manufacturing (161), retail (116), and hospitality (113), also seeing their share of complaints.

Check out the infographic at the link. Too bad I can’t embed it.

I’ve been warning about this development for some time. We’ve only just begun.