The word “unprecedented” has been applied often (and exhaustingly) throughout the COVID-19 pandemic, but when it comes to the impact the pandemic had on the U.S. employment law landscape, the term fits. This was never truer than in the earliest days of the COVID-19 outbreak when companies, facing sudden and abrupt business closures, dramatically reduced their headcounts, ad often without much, if any, advance warning.
Many businesses closing altogether or implementing mass layoffs lacked sufficient time to give notices to employees and government officials under the WARN Act, a federal law requiring larger employers to give at least sixty (60) days’ advance notice of plant closings and mass layoffs. The WARN Act does, however, afford employers several affirmative defenses when they legitimately do not have 60 days’ advance notice themselves of the coming employment losses. One of these defenses – the “natural disaster” exception, 29 U.S.C. § 2102(b)(2)(B) – generally has been applied in cases when a business shutters due to a hurricane, flood, drought, storm, tidal wave, or similar event. Many businesses relied on this exception when they terminated employees suddenly due to COVID-19, reasoning that it too was a natural (as in, not manmade) occurrence with disastrous consequences (infection, hospitalization, and death).
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