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Timothy Ford quoted in NJBIZ article, “Litigation in the age of COVID.”

August 17, 2020

As published by NJBIZ, August 10, 2020
By: Gabrielle Saulsbery

Businesses face a new set of employment law claims arising from the pandemic

Thirty years ago, George H.W. Bush signed the Americans with Disabilities Act, which required employers to provide reasonable accommodations for disabled workers so they could perform their jobs and retain the same opportunities as able-bodied colleagues. The COVID-19 pandemic is testing the law and other pieces of employment legislation, Einhorn Barbarito Frost & Botwinick PC partner Tim Ford told NJBIZ, because it wasn’t considered when they were written.

As employers try to do what they think is best for their businesses in regard to employee productivity, COVID-19 related employment lawsuits are already coming in, and more are expected in the future, he said. “The thing that’s interesting,” Ford said, “is I’ll have the employer [with] an employee that says ‘I have diabetes and asthma’ … and their doctor [says they should work from home]. There’s tens of millions of people with diabetes and it’s fairly routine you have to accommodate [them checking their blood sugar], but now the employer has to evaluate and investigate ‘to what extent do I have to make these accommodations?’”

According to the Centers for Disease Control and Prevention, people with diabetes and asthma may be at an increased risk for severe symptoms from COVID-19.

As the long-term effects of COVID-19 remain unknown, it’s unclear whether the U.S. Equal Employment Opportunity Commission, which administers and enforces civil rights laws against workplace discrimination and has offered guidance to employers throughout the pandemic, will consider COVID-19 a disability in the future. Such a move would open the door for more lawsuits under the ADA and state laws like the New Jersey Law Against Discrimination, noted Fisher Phillips associate Sarah Wieselthier. The New York City Human Rights Law has already been amended to include COVID-19 protections.

“As the world changes, as disabilities change, we have to further interpret the legislation,” Ford said, referencing a recent decision by the U.S. Supreme Court that found employers could not terminate their employees based on sexual orientation. That decision was based on the Civil Rights Act of 1964.

“The Civil Rights Act was obviously written many decades ago and it’s still being interpreted. These laws are interpreted sometimes differently in a new era. There’s going to be cases that follow for years called ‘the COVID cases,’” Ford said.

Consider the case of an employee requesting an accommodation to continue working from home for health reasons after his or her employer has mandated a return to the office.
“The analysis and the process is going to be the same as it would be for any type of accommodation, going through the interactive process, on whether or not there’s an accommodation that can be provided that doesn’t present an undue burden, which is a high bar for an employer to demonstrate,” Wieselthier said. “It would be challenging to defend an employer who says you can’t work from home when that was something the employee had done for the last four or five months. Employers, to avoid potential claims and litigation and also just based on everything going on from a human and personal standpoint, you’re going to have to be more sensitive to those types of requests.”

If an employee gets the go-ahead to work from home, can they also request accommodations in their at-home office?

“It depends on what their need and job duties require. I think that’s really specific to the position and in certain circumstances,” Wieselthier explaned. “If the employer had [a better set up] in the office, it might just be a matter of transporting that equipment to the person’s home. Just because you’re working from home [due to higher COVID-19 risk] doesn’t mean that you will necessarily be entitled to some five-star home office accommodation.”

COVID-19 employment cases also arise outside the ADA. Fisher Phillips developed a COVID-19 Employment Litigation Tracker that identifies employee versus employer cases that were a direct result of the COVID-19 pandemic. As of Aug. 6, 442 complaints were filed nationwide, including 48 in New Jersey.

In one COVID-19 employment case, a former employee filed a lawsuit in state court alleging race discrimination. The employer allegedly targeted African-American employees for termination and furlough in its COVID-19 workforce reduction.

“You’re going to see an explosion in employment litigation over the next six months to a year because a lot of employees will say they were exposed to COVID because their employers were negligent, and people are requesting to work from home at levels unheard of previously. Anytime someone requests an accommodation, business owners are seeking out counsel because they know the pitfalls—they know that it potentially exposes them to litigation, which is time-consuming and expensive,” Ford said. “With an ADA case, you end up in federal court, and those cases could go on for three, four years or more; and I certainly think that COVID has made it far more challenging.”

As the world changes, as disabilities change, we have to further interpret the legislation
— Tim Ford, partner, Einhorn Barbarito Frost & Botwinick PC

Remote work conflicts were the most prevalent complaints, according to the Fisher Phillips Employment Litigation Tracker. New Jerseyans filed the second most lawsuits, after California.
“It’s kind of a fascinating thing, the anniversary of the ADA coming at a time when COVID is here and no one know what’s acceptable or not. This will hopefully be long past us by then time the courts define whether a request posed an undue hardship on an employer,” Ford said. “A lot of times, when you’re dealing with the law, it’s revisionist history [because] you have the benefit of seeing what’s happening. I represent a lot of assisted living facilities, so when the litigation flows from that a year, two years, three years from now, will people remember that a lot of these facilities were just trying to keep people alive and were scrambling? Who knows how people will look back on 2020 in 2021, 2022, 2023 in deciding whether businesses or people took reasonable measures or not.”

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