As the pandemic continues, so too does the threat to employers of employment litigation related to COVID-19. Employers face the prospect of claims related to leave, disability accommodation, remote working, vaccine mandates, and more. One significant area of potential litigation involves claims brought by employees who may contract COVID-19 in the workplace.

To make matters even more complicated, some regions have moved away from state and local mandates regarding COVID-19 safety protocols in the workplace, leaving employers responsible to determine and enforce the appropriate level of safety protocols.

In a time of increasing uncertainty regarding what COVID-19 safety measures must or should be implemented, unionized employers recently received one bit of good news, when a federal court in New York issued an opinion in a case brought by the president of the U.S. Security Officers Union. The union, representing over two thousand court security officers, alleged that their employer (the federal government) did not adequately protect the employees from COVID-19. The complaint contended that the employer failed to properly clean the officers’ work areas and courthouses, failed to provide adequate personal protective equipment (PPE), and failed to train on proper use of the PPE, creating an alleged risk to the employees. The union further alleged that its members contracted COVID-19 in the workplace as a result of the lack of proper protocols by the employer and that some even died.

The court dismissed the union’s claims without even reaching the merits because it determined that the union did not have standing to bring the claim as an organization. In other words, the court concluded that while the union’s individual members may have been injured, the union itself must show that it was injured as an organization by the complained-of actions. Because the union itself did not have an injury, it could not bring the claim.

While technically only applicable to the portions of New York covered by the court, the decision that such suits can only be brought by those persons or organizations that have suffered an actual injury will likely have a chilling effect for any other union that was considering asserting similar allegations. The benefit to employers is that while they may face claims by individual employees, unless the union can articulate an injury to itself as an organization, employers will not face a claim by the union that aggregates the possible employees’ claims.

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