Across the country we have seen new regulations regarding the COVID-19 pandemic. Both government entities, employers, and private businesses are facing vaccine mandates, or testing mandates, or other new requirements because of COVID-19. As new laws and regulations are being passed and taking effect, there is an uptick in lawsuits filed to combat them. Currently, California is leading the way with 895 COVID-19 related workplace claims being filed against employers. This is more than the next three states combined (New Jersey: 416; Florida: 232; New York: 221). However, when broken down to account for the population of the state, the ratio demonstrates that New Jersey is actually a hotspot for employers facing COVID-19 related claims. There are about 47 cases filed for every million residents in New Jersey.
Employers in the healthcare industry are by far the most likely to see such a lawsuit filed against them. Healthcare accounted for over 700 employment cases to date, whereas the next most popular industry of retail only had 310 cases. The overwhelming majority of cases fall into three categories: remote work and leave issues, employment discrimination, and retaliation/whistleblower.
As vaccine/testing mandates become more popular in states across the country, and with the federal government, there is likely to be an uptick of claims filed related to those issues. Some states have already seen cases on this issue, such as the New York City mayor’s mandate for school teachers to be vaccinated. Most of the cases filed have been single plaintiff cases, which can be considered almost a silver lining for employers. This is because a single plaintiff case is a lot less disruptive than an entire class action. One disgruntled employee is not likely to change the productivity of your workforce.
Unfortunately, smaller employers have been sued at a greater rate than larger employers. Employers with 50 or fewer employees faced about 30% of all COVID-19 related lawsuits. When including the statistics for employers with up to 500 employees, they have been faced with more than 60% of the total lawsuits. This shows an expected trend, as larger employers are more likely to have strict compliance enforcement mechanisms for regulations, but this should not be taken lightly by smaller employers. Although many small employers may still be adjusting to the challenges of conducting their business in a pandemic, these statistics should suggest that compliance procedures should be added or updated to protect their business from oncoming lawsuits. Employers can implement training protocols and update procedures prior to the need for a lawsuit. Private employers have the option to implement vaccines and/or tests for employees, or to exempt certain employees.
The highest percentage of pandemic lawsuits relate to the CARES Act, and the newest cases are related to the vaccine related regulations. About one third of the vaccine related cases that have been filed, have been resolved. All of the resolved cases have gone through the court process as parties do not seem willing to resolve such cases by settlement agreements. This demonstrates the high-risk posture of these types of lawsuits.
Recently, there has been a huge jump in closed cases relating to COVID workplace regulations. More than half of all pandemic lawsuits have been closed, with 25 percent being closed in the last nine months. This demonstrates that even though there has been a large increase in the number of cases being filed, they are being dealt with efficiently and quickly by the courts. Federal courts are handling cases faster than state courts, but overall, more than 60 percent of COVID-19 employment cases have been resolved through a settlement between the parties, 25 percent of cases were dropped, and 12 percent were dismissed through court action.