With billions of dollars hanging in the balance, Senate Majority Leader Mitch McConnell said earlier this week that Republicans would not negotiate when it came to the business liability protections on offer in the Senate bill.
Democrats argue the measure would make it near impossible for employees to sue for negligence related to coronavirus, and the White House on Friday expressed a willingness to cut a deal without the protections.
Amid tense negotiations in Congress, it's still uncertain what protections will make it into the final bill, but there is already some evidence of how this legal landscape is shaping up. Since March, there have been 423 workplace litigation cases related to COVID-19, according to a tracker developed by Fisher Phillips.
The Atlanta-based law firm, which mostly represents employers, set up the tracker to stay ahead of how coronavirus was impacting employment law across the country.
What they've noticed so far is a mix of cases related explicitly to coronavirus, and others that concern more common workplace issues, though in the more complicated context of COVID-19.
"Since March, one of the key things that we've seen is that steadily each month more litigation has been filed," Melissa Camire, partner at Fisher Phillips, told Cheddar.
She chalks up the uptick to the reopening of the economy, and the fact that more and more cases are going into litigation. The tracker, she added, doesn't include the significantly larger number of workplace disputes that are being settled or simply haven't reached the litigation stage yet.
Fisher Phillips is also tracking the most common types of cases.
In July, for instance, workplace discrimination complaints were the most prevalent. Now issues involving sick leave or getting approval to work from home are becoming more prevalent.
"With the leave or work from home issues, it's claims where typically a worker is saying that they were denied leave or denied the opportunity to work from home, typically under the federal Families First Act," Camire said.
The Families First Coronavirus Response Act, signed into law in March, allows employees to take up to 10 weeks of paid family or medical leave due to coronavirus, whether they themselves are sick or they're taking care of a sick family member. A number of states have passed similar laws with even stronger protections.
The discrimination cases, however, tend to stem from existing employment laws, such as the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964.
"With the employment discrimination claims, the claims that we're seeing sound a lot like classic workplace disputes but in a COVID-19 context," Camire said.
She cited the hypothetical example of a pregnant woman who was furloughed because of COVID-19 making the claim that she was intentionally replaced by someone who wasn't pregnant.
Geographically, there have also been clear trends, with New York, New Jersey, Florida, and Texas making up the lion's share of complaints.
"It was not surprising to see very large numbers in California, New Jersey, New York, Florida," said Evan Shenkman, who helped develop the tracker for Fisher Phillips. "They tend to be the hotspots for employment litigation in general."
The firm anticipates more cases to stack up in the coming months as the economy reopens and recovers.
I think we're going to see the case count increase," Camire said. "During the shutdown, a lot of courts were closed, so you couldn't file new litigation, or lawyers were less accessible. As the country reopens, we're going to see more litigation get filed."
