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David Garland Quoted in “5 Types of Suits Employers Are Bracing for Post-Pandemic”

Law360

David W. Garland, Member of the Firm and Chair of the firm’s National Employment, Labor & Workforce Management Steering Committee, was quoted in Law360, in “5 Types of Suits Employers Are Bracing for Post-Pandemic,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

Employment attorneys are forecasting a wave of novel litigation once the dust settles from the COVID-19 pandemic, including suits alleging employers shorted newly remote workers on pay or refused to provide time off guaranteed by the coronavirus leave law. Here, Law360 looks at five kinds of lawsuits employers can expect to see more of as the world tries to get back to normal. …

Safety Actions Surge

Workers for hospitals, food processing facilities, retailers and other employers have fallen ill during the coronavirus pandemic, and to the extent unsafe working conditions are to blame, they may face litigation. …

The agency has so far resisted a chorus of calls from workers’ advocates to make employers implement specific safety measures or face fines. But it has urged employers to follow the Centers for Disease Control and Prevention’s coronavirus safety recommendations, and said it will bring enforcement actions under the Occupational Safety and Health Act’s general duty clause, which makes employers ensure their workplace is “free from recognized hazards that are causing or likely to cause death or serious physical harm.”

The OSH Act does not empower workers to sue over unsafe job conditions, but if they’ve fallen ill, they can file claims for workers’ compensation. While it’s generally difficult for workers to prove they contracted a virus at work, some states have recently eased this burden by presuming workers with coronavirus caught it on the job. 

Workers may also attempt to bring state law suits if they contract the virus. Though workers’ compensation law generally blocks workers from filing private suits over workplace injuries and illnesses, that bar is not absolute, so employers may face safety disputes from several angles.

“You’ll see it at OSHA, I think you’ll see it in workers’ comp, you may see workers bring claims in court and claim the workers’ comp bar for some reason does not bar that claim in court,” said Epstein Becker Green’s David Garland, who chairs the firm’s employment, labor and workforce management steering committee. “I think you can see it in all three forms.”