With the Coronavirus outbreak not letting up, businesses of all sizes face new regulations as federal and state legislation has evolved to provide employees with additional benefits and protections.
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The legislation requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. And, the FFCRA requires companies with less than 500 employees to provide up to 80 hours of sick leave pay to certain eligible employees.
Additionally, states passed similar bills providing paid employee benefits. Recently, the DC Council passed emergency legislation expanding unemployment benefits to employees quarantined or isolated by the D.C. Department of Health or any other applicable District or federal agency. Similarly, the Maryland legislature also passed an emergency declaration extending unemployment benefits to those who lose their job due to the Coronavirus, including those caring for a sick relative.
Whether the issue of employee benefits becomes the subject of class action litigation remains to be seen. First, employees may not be able to sufficiently show that questions of law and fact are common to the class. Employees may not be able to establish that their employer had a common policy that negatively impacted all employee-class members in a sufficiently common manner. Employees may have different benefit eligibility based on status of full time or part-time employees, or employees with reduced hours. For example, paid sick leave and expanded family and medical leave provisions of the FFCRA apply only to certain public employers, and private employers with fewer than 500 employees. Federal and state legislation is aimed at providing employees with federal or state subsidized leave, rather than punish employers that are too small to provide paid leave.
Furthermore, Plaintiffs may not be able to show predominance—that common issues predominate over individual ones. As noted above, there may not be sufficient commonality. Additionally, the question of damages may defeat predominance. For example, employees may seek back pay which would require an individual determination for damages.
Businesses of all sizes should continue to monitor evolving legislation to provide employees with required benefits. Moreover, such employers should consult experienced class action counsel to help mitigate the risks and exposure of a potential class action suit.