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How COVID-19 Shifted The Employment Discrimination Terrain

By Sonya Goodwin · 2021-03-11 17:02:59 -0500

Sonya Goodwin
Sonya Goodwin
For companies that strive to avoid employment discrimination claims, the COVID-19 pandemic has upended the customary legal approach.

U.S. employers used to have only two or three boxes to check before proceeding with discipline or termination: Retaliation? Protected activity? Protected class?

In the wake of the pandemic, that list has grown considerably, and companies large and small are now facing claims for routine business actions that would previously have escaped legal challenge.

Last year saw a record number of lawsuits alleging discrimination or retaliation because of COVID-19-related issue.[1] and that number is expected to grow this year.

Among the unique COVID-19 challenges that employers face is how to terminate or lay off workers in response to unprecedented business downturns while, at the same time, minimizing the risk of being sued by disgruntled employees.

Routine downsizing is suddenly fraught with special considerations. An employee with a record of poor performance could now be a larger problem for the employer, especially if that employee also happened to take medical leave due to COVID-19.

Even the best documentation establishing the employee's poor performance or bad attitude may not be sufficient to overcome a claim that the worker was singled out because of a protected medical leave.

The law in California[2] and a few other states creates a presumption that for many categories of workers, under certain circumstances COVID-19 is a workplace injury covered by workers' compensation.

This could provide important medical benefits for affected employees while allowing employers to dispassionately review possible job performance issues and avoid making termination decisions impulsively.

Equal Employment Opportunity Commission guidance on COVID-19 vaccines[3] could set employers up for additional legal exposure.

Those that mandate vaccination for their employees, as the guidance allows, could face claims of religious and disability discrimination from vaccine skeptics. Even if they have evidence to rebut those claims, most companies will find such challenges too costly and time-consuming to fight.

Mandatory vaccines could also trigger workplace culture battles that result in employee turnover. Companies that opt to make vaccinations optional for their workers may face whistleblower complaints of unsafe workplaces, as well as workers who refuse to show up because of those unsafe worksites.

This confluence of public safety and problem employees presents employers with a pandemic Hobson's choice.

The same employees whose outspokenness and lack of conformity would have made them targets of negative employment actions a year ago are now the ones most likely to assert whistleblower claims if disciplined or terminated.

The designation of employment at will has become virtually meaningless in the COVID-19 era. Employers who require workers to show up must also listen to their reasonable safety concerns.

At the same time, the expiration of the Families First Coronavirus Response Act,[4] or FFCRA, at the end of 2020 has left thousands of workers without paid leave or job protection for other COVID-19-related issues.

Workers who three months ago were eligible for paid leave to care for a spouse or parent with COVID-19 can now be fired by their employers for taking the same leave.

Without a federal safety net, workers who now take time off to care for loved ones dealing with COVID-19 or to oversee children learning remotely must rely on state and local protections, if any.

The American Rescue Plan,[5] passed by the U.S. House of Representatives March 10, did not extend the FFCRA's paid leave, as the administration had been hoping to do.

In its place, the law includes federal tax credits for employers who voluntarily offer emergency paid leave.

These tax credits are available to companies that provide paid sick leave and paid family leave to employees who are getting COVID-19 vaccines, recovering from effects of the vaccine, or awaiting COVID-19 test results.

No tax credit is available if the employer discriminates against certain workers, including highly compensated and full-time employees, in deciding who gets paid leave.  

Although paid leave was left out of the latest stimulus package, it is still on the administration's wish list and could yet become law. Employers should plan accordingly.

They could, in fact, find themselves subject to more than COVID-19  leave requirements. Paid medical leave could actually become a permanent fixture of U.S. employment law, given recent Democratic support for such legislation.[6]

Workers who still have jobs must understand that the majority of companies are doing their best to respond to a shifting legal environment while trying to protect their employees and customers.

Accommodation requests should be documented in detail, whether they involve working remotely or skipping vaccines. For employers, it will be more important than ever that personnel decisions are well considered and well documented.

Any hint of harassment, discrimination or retaliation could provide employees with both leverage and strategic options.

With the continued closure of courthouses, we can expect to see a proportionate increase in arbitrations, mediations and settlements of workplace complaints.

Claims that would once have been litigated by employers will settle earlier. Workers who would once have held out for high jury verdicts will accept less money sooner.

A reasonable settlement now must surely be preferable to waiting years for a judgment against a company that has gone out of business. 



Sonya Goodwin is a partner at Sauer & Wagner LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://www.usatoday.com/story/money/2021/01/05/covid-19-lawsuits-pandemic-spawned-over-1-000-workplace-lawsuits/4135280001/.

[2] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB1159.

[3] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.

[4] https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

[5] https://www.congress.gov/bill/117th-congress/house-bill/1319/text.

[6] https://www.help.senate.gov/ranking/newsroom/press/paid-leave-act-murray-delauro-gillibrand-to-introduce-updated-emergency-paid-leave-small-business-support-bill-in-response-to-worsening-coronavirus-crisis.

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