Prepared lawyers come to mediation with case authority or with information about jury verdicts in similar cases in hand. They will use it artfully to support their position, diminish the case of their opponent, or both. In employment law cases, there is usually no shortage of case authority or jury verdicts to which attorneys on both sides can point and use at mediation as they work towards resolution. This helps give the parties and their counsel some predictability as to possible future outcomes, as well as leverage at mediation.
With COVID-19 (COVID) employment cases however, this is not the case. The list of unanswered questions is endless. Are remote workplace arrangements automatically reasonable accommodations under the ADA post-COVID? Are terminations for refusing to get the COVID vaccine for religious reasons actionable? How does an employee show mitigation, or a defendant show a failure to mitigate, post-COVID?
Given the newness of these issues, there is little case law to guide parties, which in turn makes predicting possible outcomes particularly challenging. This increased uncertainty is why COVID employment lawsuits are especially well-suited for mediation.
A Growth in COVID Employment Law Litigation Cases
Employment law cases with a “COVID twist” began appearing about 24 months ago, as the country started to emerge from the COVID fog and employees began returning to the workplace in person. While a plethora of different cases involving COVID issues are popping up in mediations, several issues seem to be showing up with increased frequency:
- Allegations of a failure to accommodate arising when employees request that remote work be an offered as a reasonable accommodation, but employers deny such requests in the post-COVID landscape;
- Allegations of discriminatory termination when employees are discharged for refusing to get the COVID vaccine claiming it violates their religious beliefs; and
- Claims by the employer that the employee failed to mitigate with a corresponding claim by the employee that they were unable to do so due to due to COVID.
While there is little guidance as to these issues, there is some.
Remote Work as a Reasonable Accommodation
The recurring question in these types of cases is whether performing work in-person is an essential function of the job. In other words, if an employee was able to successfully work remotely during the pandemic, can working in-person post-COVID still be deemed an essential function of the job? The EEOC, in its guidelines, has provided some guidance by pointing out that:
- the right to remote work is not automatic;
- the fact that an employee worked remotely during the pandemic does not mean that employer is required to allow remote work post-pandemic; and
- the employer is not required to allow the employee to continue to work from home post-pandemic if doing so requires the elimination of an essential function of the job.
However, despite these guidelines, the EEOC recently settled its first COVID remote work case for $47,500.00. There, the employee, who had a pulmonary condition that increased her risk of experiencing extreme COVID symptoms, asserted a claim of disability discrimination based upon the employer’s refusal to allow her to continue working from home once all workers were required to return to in-person work. Her request for continued remote work was denied which led her to file a Charge of Discrimination with the EEOC, which ultimately resulted in this settlement. The key takeaway is that while the EEOC will not automatically assume that all requests for remote work should be granted, it is likely they will carefully scrutinize charges filed that include claims of a failure to grant a request to work remotely when such work was previously permitted during the pandemic.
Religious Discrimination Cases
Cases have also been emerging where former employees, who were either terminated or quit because of their refusal to be vaccinated, are asserting claims of religious discrimination. Many of these employees argue that taking the COVID vaccination is against God’s will or that their religious objection to abortion precludes them from getting the vaccine (as some vaccines are made with cells from aborted fetuses). In Holland v. 3M Company, a March 2023 case currently pending in the District Court, Northern District of Georgia, the employee quoted scripture when articulating one reason for refusal to be vaccinated stating, “If you listen carefully to the Lord Your God and do what is right in his eyes, if you pay attention to his commands and keep all his decrees, I will not bring on you any of the diseases I brought on the Egyptians, for I am the Lord, who heals you”. The employer rejected this reason (and other similar reasons) and denied her request to forego the vaccination, leading the employee to resign and pursue legal recourse.
When defending against a Title VII religious discrimination case, employers generally have three possible avenues of argument:
- the plaintiff’s belief is not religious in nature;
- the plaintiff’s belief is not sincerely held; and
- accommodating the exemption would pose an undue hardship.
But plaintiff’s attorneys should note that with cases involving religious objections, an employee only has to show a sincere belief and is not required to show that their belief complies with a particular ideology or official church. The EEOC thus far, has seemed to construe this requirement liberally in the employee’s favor.
Mitigation in a Post-COVID Landscape
A final COVID issue to consider is the increased difficulty for employees to prove mitigation. Plaintiffs in discrimination cases have a duty to mitigate their damages to be eligible for back pay or front pay damages. A plaintiff satisfies this duty by exercising “reasonable diligence to seek out or not refuse a job that is substantially equivalent to the one at issue”. As most people are aware, during the height of the pandemic and for some time after, the chances that a plaintiff could successfully find comparable new employment was significantly reduced.
A difficult job market does not, however, excuse a plaintiff from conducting a reasonable and diligent search for comparable employment. While many employees sometimes come to mediation with the mistaken belief that the difficulty in finding comparable employment during COVID relieves them of their duty to mitigate, the fact is that they must still show efforts (even if unsuccessful) to diligently search for a new position. Plaintiff’s counsel should come to the mediation prepared to articulate these efforts if they wish to thwart the likely “failure to mitigate” attack that will be waged by defense counsel. COVID has also impacted the ability to accurately calculate front pay, as the promise of continued future employment during the pandemic was questionable.
The Future is Unclear
The bottom line? There is very little case law or jury verdicts providing guidance on how these issues will be addressed, although there are many cases currently pending in jurisdictions throughout the country. Regardless, with so much uncertainty in this area of the law, mediation is an even more appealing option than normal, as predicting outcomes in these types of cases is particularly difficult.