6. Employment Disputes

• Pages: 121-143
• Author: Anne Marie Lofaso

6

Employment Disputes

Anne Marie Lofaso1

A widespread epidemic of infectious disease can change the

employment picture almost overnight—forcefully demonstrated

by COVID- 19—and dramatically impact the nature and volume

of potential employment disputes. This chapter explores a vari-

ety of such disputes and employers’ legal obligations in relation

to the workplace, with a particular emphasis on federal statutes.

During an infectious disease outbreak, there is likely to be a surge

in certain types of employment and labor disputes and, therefore,

an increase in those types of lawsuits. This is especially true when the

outbreak swells to the epidemic or pandemic level, such as in the

case of the COVID- 19 pandemic. In such instances, the public health

crisis will, as we have recently witnessed, precipitate government-

induced business shutdowns to decelerate communal spread of that

disease. Even when governments reopen at the local, state, regional,

or national level, consumer condence and spending will likely affect

the extent to which businesses will be able to reopen, which in turn

1. Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at the West Virginia

University College of Law. Professor Lofaso wishes to thank the Hodges Research

Fund for its support of this project.

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will naturally affect jobs. This chapter discusses the predictable rise

of employment litigation and the types of cases that are anticipated

during and after such circumstances. This chapter focuses on ve key

issues for employment law in an outbreak:

1. Statutory duties for employers arising from mass layoffs and

closings, especially those arising from the Worker Adjustment

and Retraining Notication Act (“WARN Act”).

2. Likely administrative disputes under the National Labor Rela-

tions Act (“NLRA”), particularly in nonunion workplaces.

3. Health and safety issues in relation to the Occupational Safety

and Health Act (“OSH Act”).

4. Potential lawsuits under the Fair Labor Standards Act (“FLSA”)

relating to telework.

5. Potential discrimination lawsuits under the Americans with Dis-

abilities Act (“ADA”) and concomitant state human rights statutes.

Statutory Duties for Employers Arising from Mass

Layoffs and Business Closings

On March 11, 2020, New York Governor Andrew Cuomo announced

the postponement of the world’s largest St. Patrick’s Day Parade—a

decision that followed cancellation of similar parades in Boston, Chi-

cago, and even Ireland.2 What came after, no one could have antic-

ipated. Later that evening, the NBA suspended its season after one

Utah Jazz player tested positive for coronavirus.3 Two days later,

the United States President declared a national state of emergency.

By March 16, every United States governor had declared a state of

emergency. By April 11, all fty states had received a federal disaster

declaration.4 By mid- April, most governors had issued stay- at- home

orders to impede the communal spread of coronavirus.

2. Liam Stack, St. Patrick’s Day Parade Is Postponed in New York Over Corona-

virus Concerns, N Y T (Mar. 11, 2020), https://www.nytimes.com

/2020/03/11/nyregion/new- york- st- patricks- day- parade- canceled.html.

3. ESPN, NBA Suspends Season Until Further Notice after Player Tests Positive

for the Coronavirus, ESPN N S (Mar. 11, 2020), https://www.espn

.com/nba/story/_/id/28887560/nba- suspends- season- further- notice- player- tests

- positive- coronavirus.

4. Id.

122 Infectious Disease Litigation

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