December 5, 2023

Tullio Corradini

Trusted Legal Source

Fifth Circuit Finds The COVID-19 Pandemic Is Not A Natural Disaster Under The WARN Act

Fifth Circuit Finds The COVID-19 Pandemic Is Not A Natural Disaster Under The WARN Act

By Gerald L. Maatman, Jr., Alex W. Karasik, and Aaron A. Bauer

Seyfarth Synopsis:  In Easom v. US Properly Servs., No. 21-20202, 2022 U.S. Application. LEXIS 16556 (5th Cir. June 15, 2022), the employer defendant invoked the Alert Act’s “natural disaster” exception when it executed mass layoffs in its Texas workforce, because of to the sudden financial downturn induced by the COVID-19 pandemic in March 2020.  The Fifth Circuit held that the COVID-19 pandemic could not be regarded a “natural-disaster” under the Warn Act, and that an employer invoking the “natural-disaster” exception ought to demonstrate that the event was the proximate result in of the layoffs.  

The Fifth Circuit’s determination demonstrates the relevance of thorough assessment when choosing no matter if to invoke an exception to the Alert Act observe requirements and scheduling this sort of layoffs.


In March 2020, oil producer US Nicely was forced to perform mass layoffs in its Texas workforce due to the unexpected steep decrease in oil demand from customers, precipitated by the COVID-19 pandemic.  Later that summer months, the laid off employees submitted a course action in a Houston federal district courtroom against the corporation, alleging that it violated the Federal Alert Act, 29 U.S.C. § 2102(a), et seq, by failing to deliver them with at minimum 60 times-observe in advance of conducting the mass layoffs.  Id. at 5.

The Warn Act presents an exception to this 60-working day detect requirement for mass layoffs that are “due to any type of natural-disaster, this kind of as a flood, earthquake, or [] drought…”  29 U.S.C. § 2102(b)(2)(B).  Defendant US Properly argued that this statutory exception used to it simply because the COVID-19 pandemic was a “natural-disaster” which pressured it to conduct mass layoffs.  Id.  The District Court agreed, and also held that US Effectively would only have to prove that COVID-19 was the ‘but-for’ induce of it obtaining to conduct mass layoffs in order to properly invoke the Warn Act ‘natural-disaster’ exemption.  The terminated personnel appealed the District Court’s conclusion to the U.S. Courtroom of Appeals for the Fifth Circuit.  Id.

The Fifth Circuit Holdings

A three choose panel on the Fifth Circuit unanimously held that: (1) COVID-19 is not a purely natural disaster below the Warn Act’s natural-catastrophe exception and that (2) the Alert Act’s natural-catastrophe exception requires that the employer prove proximate, not only ‘but-for,’ causation.  Id. at 2.

To arrive at its initial holding, the Fifth Circuit applied essential concepts of statutory interpretation to establish that when Congress handed the Warn Act in 1988, it did not intend to include things like pandemics and infectious ailments inside the that means of ‘natural-disaster.’  Id. at 12.  For its next keeping, the Fifth Circuit established that a regulation of the U.S. Office of Labor (“DOL”) – interpreting the Warn Act’s provisions pertaining to the natural-disaster exception – offers that a normal disaster need to be the proximate induce of an employer’s mass layoffs, in order for the employer to invoke the exception.  Id. at 16.

The Fifth Circuit utilized standard ideas of statutory interpretation.

The Fifth Circuit first observed that at the time the Alert Act went into influence in 1988, main dictionaries in publication had not outlined the phrase “natural-disaster.”  For the reason that of this, it could not deduce a ‘plain meaning’ of the term primarily based on a dictionary definition.  Id. at 8-9.  So the Fifth Circuit then seemed to the language in the Act surrounding ‘natural-catastrophe,’ in order to identify what styles of ‘natural events’ Congress had intended to include things like in just the term’s meaning.  Utilizing this contextual reading of the Act, the court uncovered that Congress had picked to limit the that means of the time period “natural-disaster” to “hydrological, geological, and meteorological events” not pandemics and infectious conditions.  Id. at 9-10.

The Fifth Circuit further more reasoned that Congresses final decision to exclude pandemics and infectious health conditions from the which means of ‘natural-disaster’ was a deliberate alternative, due to the fact “[b]y the late 1980’s, Congress was common with pandemics and infectious ailments.”  Id. at 11.  What’s more the court noticed that provided the wide remedial purpose of the Alert Act to handle extensive employee dislocation that transpired in the 1970’s and 1980’s, it need to narrowly construe any exceptions to Act’s software.  Consequently, the court docket held that “COVID-19 does not qualify as a organic disaster underneath the Alert Act’s all-natural-disaster exception.”  Id. at 12.

The Alert Act involves ‘proximate’ causation assessment

The Fifth Circuit also talked about how an employer must confirm that a “natural-disaster” prompted it to perform mass layoffs.  The defendant employer argued, and the lessen court docket held, that it ought to only have to show it would not have done mass layoffs ‘but-for’ a pure-catastrophe in other words and phrases, that the layoffs would not have occurred in the absence of a purely natural disaster.  Id. at 4.  The plaintiff appellants disagreed, arguing that the employer must have to establish that a organic-catastrophe was also the ‘proximate cause’ of its layoffs in other text, that the organic-catastrophe was adequately relevant to the layoffs.  Id. at 12.

The Fifth Circuit sided with the plaintiff appellants.  It appeared to the DOL regulation deciphering the Alert Act, which suggests that a pure-disaster must be the “direct-cause” of an employer’s layoffs.  It reasoned that, due to the fact earlier court precedents have interpreted ‘direct’ and ‘proximate’ causation to be synonymous phrases, an employer invoking the all-natural disaster exception should also establish that a purely natural catastrophe was the ‘proximate cause’ of its mass layoffs.  Id. at 13-14.  The Fifth Circuit disagreed with the employer’s argument that such a holding would preclude employers from invoking the detect exception for purely natural-disasters these types of as hurricanes, where the hurricane might trigger person-designed levies to crack, producing flooding, which would force companies to shut down.  According to the Fifth Circuit, mass layoffs triggered by these types of a natural catastrophe would not always “foreclose the purely natural-disaster exception” underneath proximate-trigger evaluation.  Id. at 14-16.

Implications for Companies

At initial glance, the Fifth Circuit’s holdings in Easom may possibly seem to have confined software, given that pandemics have traditionally been viewed as multi-generational functions.  Nevertheless, whether we are absolutely earlier COVID-19 shutdowns continues to be to be noticed, and the Fifth Circuit’s conclusion serves as a warning to employers who could possibly or else be tempted skirt the Warn Act’s 60-working day detect need throughout a COVID-19 shutdown.

More importantly, the Easom choice displays the significance of meticulously examining the Alert Act needs prior to conducting reductions in power.  As the Fifth Circuit mentioned, exceptions to the Alert Act demands are to be “narrowly construed.”  This means that employers need to perform mindful analysis when thinking of whether or not Alert Act exceptions use to their reductions in power.