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October 2, 2020

Potential employment-related claims resulting from COVID-19

The pandemic could become a legal problem as well as a medical one

Kerry Evensen


The COVID-19 pandemic has caused a huge upheaval in the workplace. Employers have been forced to draft policies and procedures that address new, unexpected issues, including remote work, layoffs, furloughs, pay cuts, altered workplace conditions and more.

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This has caused a level of uncertainty that has left many employers exposed to an increasing risk of employment-related claims. In fact, the insurance industry expects to see an increase in certain types of claims that are specifically caused by or related to the pandemic.

Here are several risks you might need to manage:

  1. An increased potential for employment-related retaliation claims, especially in the health care industry.  If medical providers who raise concerns over patient safety related to the treatment for COVID-19 or who believe they lack the proper procedures to minimize the spread of the virus are later mistreated or terminated, they may claim it was retaliation for raising legitimate concerns.
  2. Employees who interact with the media or post comments on social media regarding their employer’s response to the pandemic may file a claim for retaliation if they are targeted with an adverse employment decision such as failure to promote or termination. 
  3. Disability discrimination claims are also predicted to increase. For example, an employee considered to be “high-risk” due to health conditions who refuses to return to the workplace or travel for work-related events, and is subsequently dismissed or mistreated, may file a disability discrimination claim.
  4. Discrimination claims may also rise regarding how employees were selected for inclusion in certain groups that were furloughed or whose pay was reduced due to the pandemic.
  5. Expect increased claims for mistreatment, harassment and/or discrimination by employees who had COVID-19 or are suspected to have the virus.
  6. The industry also anticipates a spike in claims for the unauthorized disclosure of the identity or private medical information of infected employees.
  7. The EEOC has now authorized employers to conduct temperature checks along with other diagnostic screening measures. This practices creates a risk for claims if the employer is not consistent in selecting employees to be tested, such as targeting only members of a protected class.
  8. Compensation disputes filed by hourly workers may also increase and lead to wage and hour claims. For example, do you pay employees for the time they stand in line to have their temperature taken as well as the time it takes to put on all of the required PPE.
  9. OSHA has recorded hundreds of whistle blower complaints related to COVID-19 by employees from a variety of industries who were terminated or disciplined after reporting unsafe work conditions such as employers not allowing PPE or social distancing.
  10. There may be an increase in claims against employers who fail to comply with local stay-at-home orders, provide PPE or maintain recommended social distancing.

You also need to consider third-party claims. Most policies cover third-party employment related liability for harassment and discrimination. A third party may be a customer, vendor, delivery person or other business invitee, and if they believe they are being targeted due to race or gender or are required to follow different safety measures than others, they may file a claim for discrimination or harassment. 

Consult with your employment counsel now, rather than later

Now is the time to talk with your employment counsel to make sure you:

  • Comply with all local, state and federal laws relating to COVID-19 along with safety guidelines and requirements
  • Have return-to-work policies and procedures that specifically outline the company’s plan for employees to return to the workplace
  • Treat all employees and third parties consistently and fairly to ensure that you avoid any implication of mistreatment, harassment and discrimination

If you have any questions, please call your Marsh & McLennan Agency representative.