In-house General Counsels were surveyed recently by Morrison & Foerster LLP, and responses indicate that many are bracing for an influx of employment related litigation resulting from the COVID health crisis. 90% of the 80 General Counsel surveyed at global corporations saw wrongful employment practice litigation as the biggest legal risk they foresee.

Two-thirds of those said they fully expect to be sued for employment issues. This is the third survey Morrison & Foerster has conducted on this issue, and the results have remained consistent indicating this risk remains at the forefront of legal counsel’s concerns. This concern is despite the fact that these larger companies generally know what they are doing and have the resources (mostly) to address complaints and allegations up front before a lawsuit is filed.

With some irony, the employment liability risk assessment concerns remain even though vaccinations are coming, and a safer workplace should result. Some respondents point out that, again ironically, as employers seek to protect workers with vaccination programs, they will face new legal threats from workers that demand “special circumstances” or exceptions based upon religious and disability reasonable accommodation. 

Mixed into this a patchwork of national, state, and local legal compliance requirements that will need to be factored into policies and practices being developed, there is the concern that even if an employer gets it right, they will be sued anyways, according to Janie F Schulman of Morrison & Foerster LLP. She comments that it is “more likely plaintiff’s lawyers have become very creative in looking for ways to come up with new claims with so many people out of work.”

The liability issue is currently being debated at no less a level than the U.S. Congress as the GOP-led Senate negotiates a second COVID relief package for the country. Reports out of Washington over the weekend have stated the deadlock so far has not been just about money, though that gets the most attention in the media, but also the inclusion of employer liability relief and protections in the bill(s). Legislators in both parties are urgently trying to get this relief package out before Congress’s Christmas break. A smaller financial packaged might be passed with Congress having to pick up the liability issue early next year.

To review some of the political horse trading going on around this relief legislation, the Democrat-led House of Representatives are focusing their political rhetoric on the immediate need of the unemployed for monetary relief whereas the Republican’s Senator Mitch McConnel (R-Ky) is keeping the need for employer liability protection front and center during negotiations. With the Democrats complaining this is not the time to worry about business protections, McConnell countered this week offering to set aside liability protection for later if the Democrats drop their demand for state and local government financial help. Because the Democrats also have state and local government support as an important aid goal, this was taken as a “poison pill.” Not to be seen as totally one sided, the Democrats counter offered with a proposal to pause the lawsuits and create some sort of fund for legal fees.

This week will be critical as the clock for worker relief continues to tick toward the Congressional recess next week. Lest we think that it’s just the intractable GOP that is preventing this needed relief, and only focused on liability protection concerns, The Los Angeles Times reported the nation’s trial lawyers have been lobbying legislators sympathetic to them for some time in order to block any liability protection measure from passage. The other interested party striving to keep liability protections from being passed is Big Labor. Their position is the proposed protections also provide immunity from enforcement of federal and state safeguards for workers.

This will be a big week legislatively. Employers need legal protections or more businesses will no doubt fail. Unemployed workers need financial support while their employers work to right their business-ships and get employment going again. There has to be an equitable compromise in there.  

Sources: Law360 GC’s Bracing for Wave of COVID-19 Based Employment Suits 12/9/ 2020. Fate of New COVID-19 Relief Legislation May Hinge on Business Liability Protection Los Angeles Times 12/12/2020.