Hiring during COVID-19: Plan defensively to avoid litigation

As COVID-19 recedes in parts of the United States, businesses will be in a position to staff up. Be aware, however, that as you recall some employees from furlough or hire other applicants, workers not selected to return may take aim with litigation. In determining whom to recall during the pandemic, you should rely on carefully crafted, defensive strategies. Now is a good time to pause and thoughtfully manage the legal risks that lie ahead.

Possible areas of risk

Disparate treatment allegations. In California, New York, and elsewhere, workers who were passed over as businesses began to rebuild their workforces are filing lawsuits. One variety of lawsuit alleges the employer made its decision not to recall or hire certain individuals based on an unlawful reason peculiar to the pandemic. For example, they claim they weren’t offered work because of their advanced age, their medical condition or a disability, or both age and disability.

The former employees and their attorneys are arguing employers selected younger workers whom they viewed as less vulnerable to the virus to reduce the risk of workers’ compensation claims based on coronavirus transmission at work. Others allege their employers viewed them as particularly vulnerable to infection and made the decision not to offer them work to “protect” them—decisions the lawsuits characterize as unwelcome paternalism and illegal age and disability discrimination.