On November 11, 2013, Timothy Frazier allegedly slipped and fell in a fast food restaurant restroom owned and operated by Mita Enterprises, LLC (“Mita”).  Frazier v. Liberty Mut. Ins. Co., No. 2018-288-Appeal, 2020 WL 3117048, at *1 (R.I. June 12, 2020).  Three years later, in November 2016, Frazier filed suit against Mita to recover damages for his alleged injuries.  Id.  Mita, however, failed to respond to Mita’s complaint and Frazier filed a motion to default for Mita’s failure to respond to the complaint.  Id.  The Rhode Island Superior Court granted Frazier’s motion and default entered.  Id.  Subsequently, Mita filed a motion to vacate the entry of default and to dismiss the case for lack of sufficient service of process.  Id.  The first trial judge granted Mita’s motions and the case was dismissed on August 4, 2017.  Id.

Frazier later filed a new complaint against Mita in July 2017.  Id.  The process server, however, returned the summons non est inventus (“he is not found”), as Mita was not located.  Id.  Pursuant to Rule 21 of the Rhode Island Superior Court Rules of Civil Procedure, Frazier then moved to substitute Liberty Mutual, Mita’s insurance carrier, as a defendant.  Id.  Objecting to Frazier’s motion, Liberty Mutual argued, in part, that the statute of limitations barred Frazier’s claim.  Id.  Before addressing Liberty Mutual’s defense, however, Frazier renewed his motion to substitute and moved to amend his complaint.  Id.  The parties subsequently agreed that Frazier’s motion to substitute would be granted, but that Liberty Mutual reserved the right to assert any and all defenses, including the statute of limitations defense.  Id.  After Frazier amended his complaint on April 9, 2018, Liberty Mutual moved to dismiss it by arguing that the applicable statute of limitations barred Frazier’s claim.  Id. at *2.  In opposition to Liberty Mutual’s motion, Frazier relied on Rhode Island’s savings statute, arguing that Liberty Mutual was not a stranger to the first action against Mita, and thus, his claim was preserved for an additional year.  Id.  Rhode Island’s savings statute, R.I. Gen. Laws § 9-1-22, provides that:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, [the plaintiff] may commence a new action upon the same claim within one year after the termination.”  G.L. 1956 § 9-1-22.

The second trial justice disagreed with Frazier and granted Liberty Mutual’s motion reasoning that Frazier’s claim was not preserved by the savings statute and was barred by the applicable three-year statute of limitations.  Frazier, 2020 WL 3117048, at *2.  Frazier timely appealed.  Id.

On appeal, the Rhode Island Supreme Court held that the second trial judge erred in granting Liberty Mutual’s motion to dismiss because Mita and Liberty Mutual shared “a sufficient commonality of interest,” and, thus, Liberty Mutual was not a “stranger to the original action.”   Id. at *4 (quoting Luft v. Factory Mut. Liability Ins. Co. of America, 155 A. 526, 527 (1931)).  The Court reasoned that “modern society and evolving jurisprudence present a different view” of whether an insurer who appears on behalf of its insured is considered a “stranger to the original action.”  Id. at *3.  Moreover, initiating an action against an insurance company “places the injured person in precisely the same position with relation to the insurer” that the policyholder would have had if he or she had paid the judgment and then sought to be indemnified by the insurer.  Id. at *4 (quoting Hunt v. Century Indemnity Co., 192 A. 799, 803 (1937)).  Thus, in light of this “sufficient link” and “commonality of interest” between an insurance company and its insured, “an insurance company is not . . . a stranger to the original action against its insured” for purposes of the savings statute.  Id. at *3.  Importantly, the Court reasoned that this “sufficient link” existed between Liberty Mutual and Mita because Liberty Mutual employed lawyers to request the trial court to dismiss the first action against Mita for lack of adequate service of process.  Id. at *4.  Therefore, as a result, Liberty Mutual was not a stranger to the original action and Frazier’s claim against it should not be deprived the benefit of the savings statute.  Id.

In one of his last acts before retiring, Justice Indeglia authored a dissent.  Justice Indeglia asserted that the Court should not “depart from longstanding precedent” and should observe the principles of stare decisis, observing legal precedent.  Id. at *5 (Indeglia, J., dissenting).  Although the dissent agreed that the savings statute cannot be applied against a party who “was a stranger to the original action,” it disagreed with the Court’s interpretation of the word “stranger.”  Id.  Justice Indeglia pointed out that the Court’s jurisprudence and plain language suggests that the meaning of the term “stranger” is used to refer to someone who is not “a named party.”  Id. at *5-6; see also, Luft, 155 A. at 526-27.  Thus, he argues, Liberty Mutual was a stranger to the suit because “they were not a party” to the original action, and more importantly, were not named in either of Frazier’s initial complaints against Mita.  Frazier, 2020 WL 3117048, at *6.  As a practical matter, the dissent points out that broadening the applicability of the savings statute to include insurance companies that were not named in the original action provides “plaintiff[s] with an additional one year, plus 120 days, tacked onto the statute of limitations.”  Id. at *5 (citing G.L. 1956 § 9-1-14(c), 9-1-22).  This, the dissent worries, will carry tremendous negative financial consequences for consumers because insurance companies will now face an increase in potential liability which will, in turn, pass the cost onto the insured in the form of increased insurance premiums.  Id.

This decision carries with it obvious (and quite alarming) consequences.  As an initial matter, it is important to note that the Court’s ruling in Frazier may have limited application. This is because in Rhode Island, an injured party or their estate may not bring an action against the alleged tortfeasor’s insurer unless: (1) service of process was returned non est inventus; (2) the alleged tortfeasor has died and probate proceedings have not yet been initiated; or (3) the alleged tortfeasor has filed for bankruptcy. See R.I. Gen. Laws §§ 27-7-2 and 27-2-2.4.  Aside from these narrow applications, however, the savings statute should be precisely that: a “savings” statute.  That is, even if plaintiffs fail to name an insurance company in their original action and the statute of limitation has expired, the claim will be “saved” because of the now shared “commonality of interest” that exists between insurance companies and their insureds.  This means that an insurance company likely never will be a “stranger to the original action,” and the savings statute always may come to the rescue in the event the insured cannot be located or the plaintiff fails to name the insurance company in the original action.

As for insurance companies, the take away is not as comforting.  The Court’s ruling in Frazier means that insurance companies now will be exposed to potential liability for a longer period of time.  As the dissent points out, this may cause an increase in costs for insured persons in the form of increased premium rates to account for the increased risk to which insurance companies are now subjected.  Additionally, and strategically speaking, insurance companies now will be potentially at a significant disadvantage when defending against an action in which they were not named.  This is because the Court in Frazier views insurance companies and their insured as one in the same.  As a result, this could mean that insurance companies will no longer be able to raise certain affirmative defenses such as lack of notice or improper service of process, even if the insured fails to notify its insurer of the suit or the insurer is never served with process.  In sum, the lesson from this case for insurance companies is to keep an eye out for potential lawsuits against individuals they insure and prepare for prolonged exposure to potential liability.

As phased reopening plans are initiated across the country, many business owners are fearful that reopening may bring with it the possibility of significant liability exposure for COVID-19 related lawsuits. Businesses already feeling the impact of a national economic crisis could face an even more devastating financial impact absent some type of protection. It is inevitable that members of the public will continue to contract COVID-19, despite the precautionary measures in place and those contemplated by businesses that have yet to open. Many argue that in order to seriously consider reopening, businesses must be afforded some legal certainty that they will not face a flood of lawsuits from individuals that contract the virus. While it may be difficult for a plaintiff to ultimately prove that they contracted COVID-19 from a particular business, rather than from some other source, the costs associated with defending such lawsuits could place some businesses in financial jeopardy. In an effort to address these concerns and provide businesses with the confidence to reopen, a growing number of states have considered legislation aimed to immunize companies in various sectors from liability for potential lawsuits by individuals that contract COVID-19.

In the early stages of the pandemic, many states granted immunity to health care providers through legislation or executive order. More recently, states have both considered and enacted legislation that extends immunity to a much broader scope of businesses and other entities. For instance, North Carolina has enacted legislation offering limited immunity from civil liability for essential businesses in the state with respect to claims by customers and employees for injuries or death alleged to have been caused as a result of contracting COVID-19.[1] Emergency response entities are also afforded this immunity in North Carolina. There are, however, limitations to the immunity provided. There is no immunity if the injuries or death were caused by an act or omission of the essential business or emergency response entity that constituted gross negligence, reckless misconduct, or intentional infliction of harm.

Oklahoma offers even broader protection, as its recent legislation affords anyone who conducts business in the state immunity from liability in any civil action involving allegations of exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in compliance or consistent with federal or state regulations, executive orders, or guidance applicable at the time of the alleged exposure.[2] If two or more sources of guidance are applicable to the conduct or risk at the time of the alleged exposure, the person or business will not be liable if the conduct was consistent with any applicable guidance.

Similarly, Wyoming has passed legislation that provides immunity from liability for any health care provider or other person, including a business entity, who in good faith follows the instructions of a state, city, town, or county health officer or who acts in good faith in responding to the public health emergency.[3] Immunity does not, however, apply to acts or omissions that constitute gross negligence or willful or wanton misconduct. Following the enactment of this legislation, the Wyoming Business Alliance urged the Joint Judiciary Committee to consider amending the statute to eliminate perceived ambiguity in its terms. Specifically, it proposed revisions to the statutory language to expand and define the specific entities that are shielded from liability, as the current version does not address its applicability to non-profit organizations, unincorporated organizations, or political subdivisions, which are equally susceptible to COVID-19 liability exposure.[4] The Joint Judiciary Committee ultimately voted to draft a bill to incorporate these suggestions, though it rejected others, such as a proposal to require “clear and convincing evidence” to prove gross negligence under the statute.

Utah has also passed legislation that provides immunity from civil liability to all persons and premises for damages or injury resulting from the exposure of an individual to COVID-19, but it does not apply to willful misconduct, reckless infliction of harm, or intentional infliction of harm.[5] In addition, the Governor of Louisiana recently signed a bill into law that provides immunity to restaurants from civil liability for COVID-19 related lawsuits, provided that they are in substantial compliance with applicable COVID-19 procedures.[6] The Louisiana legislation similarly provides an exclusion for injury or death caused by gross negligence or willful and wanton misconduct. Iowa was the most recent state to enact similar business immunity legislation on June 18, 2020.[7]

The Governor of Arkansas bypassed the legislature and signed an executive order that expands COVID-19 related civil liability immunity for businesses. The executive order provides all businesses and their employees with immunity from civil liability for damages or injuries caused by or resulting from exposure to COVID-19, though immunity does not apply to willful, reckless, or intentional misconduct.[8]

In addition to the states profiled above that have passed legislation to protect businesses, several other states have also introduced legislation to immunize businesses from COVID-19 lawsuits. For instance, the Georgia legislature has introduced a bill that would provide broad protections from civil liability to Georgia businesses under certain circumstances[9] and the Tennessee legislature is considering similar legislation.[10] North Carolina, which previously passed legislation to immunize essential businesses from liability, has now introduced a bill which would extend those protections to essentially every business in the state, as well as government agencies.[11]

On the other hand, a number of states, including those in New England, have failed to take significant steps towards extending the immunity that protects their health care industries to other businesses. All of this may be moot, however, as it is expected that the federal government will pass legislation to protect a broad spectrum of businesses, as Senate majority leader Mitch McConnell has identified business immunity as his top priority, with the White House echoing that sentiment.[12]

Efforts to immunize businesses from liability for COVID-19 related lawsuits have been met with a great deal of opposition across the country. Those opposed to immunity legislation have stressed that negligence and other laws have been established to ensure that businesses take the proper precautions to ensure the safety of those to whom they open their doors. They argue that if businesses are allowed to take the possibility of liability off the table, they may not adhere to the applicable health and safety standards, thereby putting more people at risk and endangering lives. They also argue that the threat of being held accountable in court provides businesses with a strong incentive to ensure that they are acting both safely and responsibly. Proponents of immunity legislation contend that the exclusions for more egregious conduct, such as gross negligence, offer a compromise, as the legislation serves to protect businesses, while incentivizing their compliance with applicable safety regulations and furnishing an avenue for recovery against those who fail to comply with those safety regulations.

Lawmakers across the country continue to attempt to strike a balance between the need to financially protect businesses amid a financial crisis and the need to ensure the safety of the public during a global pandemic. The protections afforded to certain businesses from civil liability in some states are not without limitations and do not provide blanket immunity. This conditioned immunity legislation should serve to limit COVID-19 claims by providing businesses with a defense. Such legislation does not, however, prevent plaintiffs from filing such lawsuits in the first place. Accordingly, all businesses must be careful to monitor and strictly comply with the evolving state and federal mandates and safety guidelines pertaining to their specific businesses and/or industries as the country continues to navigate these unprecedented times.

[1] The Governor of North Carolina signed Senate Bill 704 into law on May 4, 2020.

[2] Senate Bill 1946 was approved by the Governor of Oklahoma on May 21, 2020.

[3] Wyoming’s Senate File No. 1002 was signed into law on May 20, 2020.

[4] A representative of the Wyoming Business Alliance presented these proposed revisions, among others, to the Joint Judiciary Committee at a meeting held on June 4, 2020.

[5] Utah S.B. 3007 was signed into law by its Governor on May 4, 2020.

[6] The Governor of Louisiana signed Senate Bill No. 508 into law on June 12, 2020.

[7] The Governor of Iowa signed SF2338 into law on June 18, 2020.

[8] The Governor or Arkansas issued Executive Order 20-33 on June 15, 2020.

[9] Georgia’s Senate Public Safety Committee passed House Bill 216 on June 15, 2020.

[10] The Tennessee Safe Harbor and Recovery Act (SB2381/HB2623) continues to advance and is close to being approved by Tennessee lawmakers.

[11] House Bill 118 is in the process of being reviewed by the North Carolina Senate.

[12] In an interview on May 21, 2020, McConnell told Fox News that one of his “red lines” in the next bill is liability protection, though it would not protect against gross negligence or intentional misbehavior.

For all Americans, the beginning of June brings with it the lifting of stay-at-home orders and the reopening of the economies of every state. Yet, many experts warn that it could be months or even years before everyday life returns to normal. While the “new” American way of life is uncertain at best, recent trends in litigation provide some insight into the types of claims that are likely to arise out of the COVID-19 pandemic. One trend highlights an emergence in litigation involving consumer protection statutes and COVID-19.

Unfair and Deceptive Acts and Practices (UDAP) statues exist in all fifty states and the District of Columbia to protect consumers from unfair, deceptive, predatory and unscrupulous business practices.[1]  However, there exists little uniformity among UDAP statues. Some states such as Massachusetts provide for liberal coverage, extensive damages, and attorneys’ fees. Other states, such as Rhode Island, exempt most lenders and creditors from UDAP coverage.[2] By way of example, Massachusetts’ UDAP statute, known as “Chapter 93A” broadly prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”[3] Chapter 93A Section 9 provides for a private right of action for a claimant who is a consumer and Chapter 93A Section 11 provides for a private cause of action for an entity engaged in trade or commerce.[4] The Massachusetts UDAP statute provides for actual damages, multiple damages for knowing or willful violations, and attorneys’ fees to a prevailing claimant.[5]

In comparison, California has two UDAP statutes. First, California’s Unfair Competition Law, prohibits any unlawful, unfair or fraudulent business practice, as well as depictive or misleading advertising.[6] Though the Unfair Competition Law does not exempt particular businesses, consumers may not seek damages or multiple damages and are limited to restitution.[7] Private causes of action under California’s Unfair Competition Law are also limited to consumers who have “lost money or property.”[8] California’s other UDAP statute is the Consumers Legal Remedies Act, California Code sections 1750-1784.[9] The Consumer Legal Remedies Act applies to consumer transactions involving the “sale or lease of goods or services.”[10]

In addition to general provisions that prohibit unfair or deceptive acts, many UDAP statues give the attorney general or a state agency authority to adopt rules and regulations to enforce the act. For example, Massachusetts’ Chapter 93A provides that “[t]he attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter.”[11] As such, on March 20, 2020, Massachusetts Attorney General Maura Healey announced an emergency regulation banning price gouging of essential products and services in light of the COVID-19 pandemic.[12] Attorney General Healey’s amendment sought to supplement Massachusetts’s Chapter 93A statute, which previously regulated only the sale of gasoline and petroleum.[13] The amendment now prohibits price gouging of all essential goods necessary to prevent the spread of the pandemic (e.g., masks, soap and hand sanitizer). By contrast, California’s Unfair Competition Law does not provide a state agency with authority to adopt rules prohibiting emerging scams.[14]

In recent months, consumers filed numerous complaints across the country alleging COVID-19 related consumer protection violations and price gouging. These COVID-19 lawsuits illustrate how claimants rely upon consumer protection laws and regulations to contend that businesses have engaged in unfair acts. First, in DelVecchio v. Town Sports International, LLC et al., the plaintiffs filed a class action lawsuit alleging violations of Massachusetts’ Consumer Protection Statute.[15] The Amended Complaint alleges “unfair and deceptive acts and practices against Massachusetts consumers” by the defendant, Town Sports International, LLC (d/b/a Boston Sports Clubs), “in willfully and knowingly charging consumers monthly membership fees for services that Town Sports knew it would not be providing pursuant to the terms of its membership agreements.”[16] More specifically, plaintiff’s Amended Complaint details that while Boston Sports Clubs closed its doors in mid-March 2020, it continued to charge consumers monthly membership fees, despite requests to cancel memberships, freeze accounts or refund charges and knowing that it would not provide the services for which it charged.[17] The Amended Complaint avers that Town Sports violated the Massachusetts Consumer Protection Statute, M.G.L. c. 93A, when it “willfully and knowingly charg[ed] consumers for services it knew it would not provide” and “then, knowing the financial strain felt by many of its members during the Massachusetts State of Emergency, made it virtually impossible for consumers to cancel their memberships or avoid further charges for services Town Sports knew it would not render.[18]

Two recent California District Court cases illustrate a growing trend in consumer protection actions related to price gouging. On April 20, 2020, a group of California plaintiffs sued multiple grocery sellers including Whole Foods Market Group, Inc., Costco Wholesale Corp., Amazon.com, Inc., and Trader Joe’s Co. alleging violations of California’s Unfair Competition Law for “unjustifiably raising the price of eggs by more than ten percent during the declared state of emergency.” [19] Plaintiffs rely upon California Penal Code Section 396(a) which prohibits price gouging of more than ten percent during a declared state of emergency and provides that a violation of Section 396 “shall constitute an unlawful business practice and an act of unfair competition within the meaning of Section 17200 of the Business and Professions Code.”[20] The Complaint alleges that because the defendants violated California Penal Code Section 396 and California’s Unfair Competition Law, plaintiffs are entitled to both injunctive relief pursuant to Section 18203 of the Business and Professions Code and restitution.[21]

Likewise, on April 21, 2020, a plaintiff filed a consumer protection class action lawsuit in California District Court against Amazon.com, Inc. (“Amazon”).[22] Plaintiff McQueen, on behalf of a class of similarly situated plaintiffs, sought “to hold Amazon accountable for its unlawful price increases during the COVID-19 pandemic” under California’s Unfair Competition Law, in addition to claims for negligence, negligence per se, and unjust enrichment.[23] The Complaint alleges that after California officials declared a public health emergency, face masks increased in price over 500%, pain relievers rose from $18.75 to $62.40, flour increased over 400% in price and disinfectants rose from $14.99 to $29.99.[24] Similar to the Fraser Complaint, the McQueen plaintiffs also claimed violations of California Penal Code Section 396, and thus violations of California’s Unfair Competition Law.[25]

In Florida, a plaintiff recently accused Amazon of price gouging in spite of a worldwide pandemic by allegedly charging the named plaintiff $99.00 for a 36-pack of toilet paper and $199.00 for a two-pack of one liter hand sanitizer bottles, prices that are several times the normal prices for those products.[26] In Alaska, a resident faces a lawsuit alleging numerous consumer protection violations for stockpiling thousands of N95 facemasks and selling those masks “on the internet for unconscionable prices during a time of increased necessity and high demand for such respirators [which] offends public policy, violates fundamental concepts of fairness, and is unethical, immoral, and unscrupulous.”[27]

Other COVID-19 consumer protection actions concern deceptive advertising practices. For example, in another California District Court matter, a plaintiff filed a class action lawsuit seeking to enjoin Target “from engaging in deceptive advertising and business practices concerning false and misleading promotion of its hand sanitizer product that purports to eliminate 99.99% of germs.”[28] The Complaint states that despite a lack of any studies demonstrating that Target’s hand sanitizer is effective in killing germs, Target represented that the Hand Sanitizer “kills 99.99% of germs,” and thus “misleads consumers into believing its Hand Sanitizer is as effective as Purell’s and can therefore prevent disease or infection from, for example, Coronavirus and flu, along with other claims that go beyond the general intended use of a topical alcohol-based hand sanitizer.”[29] Plaintiffs sought damages in the form of restitution and injunctive relief under California’s Unfair Competition Law and California’s Consumer Legal Remedies Act, and for negligent misrepresentation and intentional misrepresentation.[30]

Businesses must brace for a flurry of inevitable consumer protection lawsuits. Not only must businesses anticipate how state specific UDAP statutes may give rise to COVID-19 specific claims, but businesses must also pay careful attention to any rules and regulations imposed by state agencies as related to COVID-19 and consumer protections. Though many businesses may be well intentioned in ensuring that consumer goods are available to their customers in the wake of worldwide shortages, businesses must also consider the optics associated with the provision of consumer goods in view of UDAP statutes and COVID-19-specific rules and regulations imposed by the states.

[1] Carolyn Carter, Consumer Protection in the States: A 50-State Evaluation of Unfair and Deceptive Practices Laws, National Consumer Law Center, Inc. (Mar. 2018), https://www.nclc.org/images/pdf/udap/udap-report.pdf (hereinafter, the “50-State Report on UDAP”).

[2] See Carter, supra note 1, 50-State Report on UDAP, at 1-8.

[3] M.G.L. c. 93A, § 2.

[4] Id., §§ 9, 11.

[5] M.G.L. c. 93A.

[6] Cal. Bus. & Prof. Code §§ 17200-17209.

[7] Id.

[8] Id.

[9] Cal. Civ. Code §§1750, et seq.

[10] See Carter, supra note 1, 50-State Report on UDAP (explaining that California has a second UDAP statute which allows for compensatory damages and punitive damages). California also has a False Advertising Act, codified in the Business and Professions Code Section 17500, which prohibits “untrue or misleading” advertising. See Cal. Bus. & Prof. Code § 17500.

[11] M.G.L. c. 93A, § 2(c).

[12] Office of Attorney General Maura Healey, Press Release: AG Healey Issues Emergency Regulation Prohibiting Price Gouging of Critical Goods and Services During COVID-19 Emergency (Mar. 20, 2020), https://www.mass.gov/news/ag-healey-issues-emergency-regulation-prohibiting-price-gouging-of-critical-goods-and-services (last visited June 9, 2020) (hereinafter, “Attorney General Healey’s March 20, 2020 Price Gouging Regulation”).

[13] See supra note 12, Attorney General Healey’s March 20, 2020 Price Gouging Regulation.

[14] See Carter, supra note 1, 50-State Report on UDAP at 54; but see California Attorney General Xavier Becerra, Press Release: Attorney General Becerra Calls on Online Marketplaces to Up Their Game to Combat COVID-19 Price Gouging on Their Platforms (Mar. 20, 2020), https://www.nclc.org/images/pdf/udap/udap-report.pdf; California Attorney General Xavier Becerra, Press Release: Attorney General Becerra Reminds Wholesalers and Manufacturers They are Subject to California’s Price Gouging Law (Mar. 27, 2020), https://oag.ca.gov/news/press-releases/attorney-general-becerra-reminds-wholesalers-and-manufacturers-they-are-subject. California Penal Code Section 396 prohibits “excessive and unjustified increases in the prices of essential consumer goods and services” during a state of emergency. Cal. Penal Code § 396. Furthermore, a violation of Section 396 “shall constitute an unlawful business practice and an act of unfair competition within the meaning of Section 17200 of the Business and Professions Code.” Cal. Penal Code § 396(i).

[15] See DelVecchio v. Town Sports International, LLC et al., Civil Action No. 1:20-10666, ECF. No. 1. Plaintiffs subsequently filed an Amended Complaint and a request for a Preliminary Injunction and declaratory relief against Town Sports International. Id., ECF. No. 7-8. While the plaintiffs/members eventually withdrew the motion for a preliminary injunction, the defendant both moved to dismiss the Amended Complaint and moved for sanctions against the plaintiffs. Id., ECF. No. 13, 25-27.

[16] DelVecchio v. Town Sports International, LLC et al., Civil Action No. 1:20-10666, ECF. No. 21, at 1.

[17] Id., at 1-2.

[18] Id. at 2.

[19] Fraser et al. v. Cal-Maine Foods, Inc. et al., No. 20-cv-02733 (N.D. Cal. Apr. 20, 2020), ECF No. 1.

[20] Id.; Cal. Penal Code § 396.

[21] Id.

[22] McQueen et al. v. Amazon.com, Inc., No. 4:20-cv-02782-JSW (N.D. Cal. Apr. 21, 2020), ECF No. 1.

[23] Id.

[24] Id.

[25] Id.

[26] Armas v. Amazon.com Inc., Case No. 104631782 (Cir. Ct. Fla. Mar. 10, 2020), at 3.

[27] State of Alaska v. Juan Lyle Aune, Case No. 3AN-20-05758 (Apr. 1, 2020), Complaint at ¶ 14 (alleging violations of the Unfair Trade Practices Act, AS 45.50.471-.561).

[28] Taslakian v. Target Corp., et al, 2:20-cv-02667 (C.D. Cal. Mar. 20, 2020), ECF. No. 1. On May 4, 2020, the Plaintiff filed a notice of voluntary dismissal without prejudice.

[29] Id. at 3.

[30] See generally, id.

In our 240+ year history as a country, we have endured numerous tribulations that have in some way, threatened our way of life. The COVID-19 outbreak has forced us to engage in new behaviors, including social distancing and the consistent use of face masks outside of our homes. Moreover, several companies are working tirelessly to develop potential treatments for a virus that has infected approximately 1.25 million Americans and killed approximately 75,670.[1] Among other efforts, entities are repurposing equipment and physicians are prescribing medication for “off-label use.” Surgeon General Jerome Adams has even gone so far as to compare the COVID-19 outbreak to national emergencies like Pearl Harbor and the September 11, 2001 attack on the World Trade Center.

Indispensable to facing these challenges are private-sector entities. World War II is an excellent example, during which President Franklin Roosevelt declared, “[p]owerful enemies must be out-fought and out-produced.” Shortly after the attack on Pearl Harbor, many manufacturers were repurposed to manufacture war items such as aircraft, aircraft engines, trucks, and tanks. Though a pandemic is certainly different than a war, several companies have altered their normal courses of business to help contribute towards the collective fight against COVID-19. Today, the businesses supporting efforts to curb COVID-19 include pharmaceutical companies, medical device companies, medical technology companies, and more. Despite their good faith contributions, which include activities such as repurposing equipment and medication for “off-label” use, these companies will almost certainly face litigation related to the products they have manufactured in an effort to combat the crisis we face today. Nonetheless, companies may be insulated from liability pursuant to the Public Readiness and Emergency Preparedness Act (“PREP”), if they meet certain criteria.

PREP, signed into law in 2005, authorizes the Department of Health and Human Services (“HHS”) to issue a declaration that provides immunity from liability for entities and/or individuals involved in the development of “countermeasures” meant to fight a public health emergency. On March 10, 2020, the HHS issued a declaration providing “liability immunity for activities related to medical countermeasures against COVID-19,” absent willful misconduct (“COVID-19 Declaration”). Entities/individuals covered under the COVID-19 Declaration (“Covered Persons”) include those involved in the following activities: manufacturing, testing, development, distribution, administration, prescription and/or use of “Covered Countermeasures.”[2]

“Covered Countermeasures” under the COVID-19 Declaration

Certain products fall under the “Covered Countermeasures” category. Covered Countermeasures include:

  1. Qualified pandemic or epidemic products;
  2. Security countermeasures[3]; or
  3. Drugs/products authorized for emergency use by the Food and Drug Administration (“FDA”).

Qualified Pandemic or Epidemic Products

To qualify as a qualified pandemic or epidemic product, the drug, device, or biological product must be approved or cleared by the FDA, licensed under Section 351 (42 U.S.C. § 262) of the Public Health Services Act (“PHS Act”) as a biological product, or authorized for emergency use by the FDA.

In addition to the one of the foregoing prerequisites, the drug, device, or biological product must be:

  1. Manufactured, used, designed, developed, modified, licensed or procured to diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic or limit the harm such a pandemic or epidemic might otherwise cause;
  2. Manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious life-threatening disease or condition caused by such a drug, biological product, or device; or
  3. A product or technology intended to enhance the use or effect of such a drug, biological product, or device.

Under the PREP Act, drugs, devices, and biological products are defined as follows:

Drug: articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals, and articles (other than food) intended to affect the structure or function of the body of man or other animals.

Biological product: virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic or analogous product, arsphenamine or its derivative (or any other trivalent arsenic compound) applicable to the prevention, treatment, or cure of a disease or condition of human beings.

Device: instrument, apparatus, implement, machine, contrivance, implant, in vitro agent, or other similar or related article intended for use in the diagnosis, cure mitigation, treatment or prevention of disease in man or other animals or intended to affect the structure or function of the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes.

The COVID-19 Declaration further specifies what qualifies as a Covered Countermeasure as “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such products.”

A qualified pandemic or epidemic product may also be a Covered Countermeasure if the product is subject to an FDA exemption. The FDA requires products to meet certain criteria prior to interstate shipment and administration of the product. However, the FDA can approve applications for an Investigational New Drug (“IND”) or Investigational Device Exemption (“IDE”) which would allow the use of the unapproved product for purposes of collecting safety and effectiveness data. A commonly discussed investigational product is convalescent plasma, which the FDA is regulating as an unapproved investigational treatment for COVID-19.

Products authorized for emergency use by the FDA – Emergency Use Authorization (“EUA”)[4]

Pursuant to Section 564 of the Federal Food, Drug, and Cosmetic Act (FD&C Act), the FDA can authorize the use of unapproved products and/or unapproved use of products for purposes of mitigating diseases or conditions when there are no adequate alternatives.

As a result of the COVID-19 outbreak, the FDA has authorized numerous EUAs. The following products, among others, have been approved for emergency use:

  • In Vitro Diagnostic Products (testing kits)
  • High Complexity Molecular-Based Laboratory Developed Tests
  • Personal Protective Equipment (“PPE”)
  • Devices for decontamination of PPE
  • Ventilators
  • Products modified for use as ventilators
  • Extracorporeal Blood Purification Devices
  • Infusion Pump System
  • Diaphragm Pacing System
  • Chloroquine phosphate and Hydroxchloroquine sulfate supplied from the Strategic National Stockpile

The FDA will consider four criteria in its issuance for emergency use. These criteria include:

  1. SARS-CoV-2 (COVID-19) can cause a serious or life-threatening disease or condition;
  2. The product may be effective in its intended purpose;
  3. The benefits of the product outweigh the potential risks; and
  4. There is no adequate, approved, and available alternative to the emergency use of the product.

Limitations of PREP Act and the COVID-19 Declaration

A company/individual will not be insulated from liability for losses caused by willful misconduct. The PREP Act defines willful misconduct as “an act or failure to act that is taken:

  1. Intentionally to achieve a wrongful purpose;
  2. Knowingly without legal or factual justification; and
  3. In disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”

Furthermore, liability immunity is only available for activities involving Covered Countermeasures that are related to:

  1. “Present or future federal contracts, cooperative agreements, grants, other transactions, interagency agreements, or memoranda of understanding or other federal agreements; or
  2. “Activities authorized in accordance with the public health and medical response of” federal, state, local, and tribal authorities “acting on behalf of those governmental entities.”[5]

Additionally, liability immunity lapses in October 2024. However, the declaration provides an additional 12 months of protection “to allow for the manufacture(s) to arrange for disposition of Covered Countermeasure, including return of the Covered Countermeasures to the manufacturer…” Thus, entities/individuals should take measures now to ensure the timely return and disposition of Covered Countermeasures when they are no longer required.

Department of Health & Human Services Guidance on Coverage under the PREP Act

On April 14, 2020, the HHS issued an advisory opinion concerning the PREP Act and the COVID-19 Declaration that provides guidance on potential application and recommended steps individuals/entities may take to ensure compliance. Though the HHS advisory opinion may not be binding in Court in the event of resulting litigation, it is nonetheless instructive. The HHS states that immunity is broad under the PREP Act and it advises that an individual/entity may qualify for the protections under the Act and Declaration, even if it is not a Covered Person or its product is not a Covered Countermeasure so long as the individual/entity: 1) complies with all other requirements of the PREP Act; and 2) reasonably could have believed that the product was a Covered Countermeasure” or the entity was a Covered Person. The HHS’s advisory opinion is significant in that the PREP Act could provide immunity to entities/individuals that are not covered by the plain language of the PREP Act or the COVID-19 Declaration. In addition, to demonstrate that products are Covered Countermeasures and qualify for immunity under the PREP Act, the HHS advises that entities/individuals “should take, and document, reasonable precautions under the current emergent circumstances to facilitate the safe use or administration of Covered Countermeasures and to make those documents publicly and easily available.”

Conclusion

The essential role of manufacturers and private-sector entities during World War II is irrefutable. COVID-19 presents an unprecedented crisis that requires not only the participation of individuals through measures such as social distancing, but also the participation of entities capable of producing drugs and devices vital to the urgent fight against COVID-19. Well-intentioned entities/individuals contributing to the fight should be protected and not punished for their work. The PREP Act exists to extend such safeguards, and individuals and entities engaged in covered activities should be aware of the parameters of the Act to ensure that their essential and necessary work is protected under the PREP Act.

 

[1] COVID-19 cases and deaths as of April 29, 2020 on COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU); coronavirus.jhu.edu/map.html.

[2] The Department of Health & Human Services interprets “Covered Person” broadly in its April 14, 2020 Advisory Opinion on the PREP Act and the March 10, 2020 Declaration under the Act.

[3] This article does not discuss Security countermeasures as they are not relevant to COVID-19.

[4] A more comprehensive list of EUA’s can be found at the following links: (1) https://www.fda.gov/media/136832/download and (2) https://www.fda.gov/media/136702/download

[5] The HHS interpreted these conditions broadly stating that they include “(1) any arrangement with the federal government, or (2) any activity that is part of an authorized emergency response at the federal, regional, state, or local level. Such activities can be authorized through, among other things, guidance, requests for assistance, agreements, or other arrangements.”

Partner Jeff McLucas explores Employment Issues in the Age of Coronavirus. For more information, we encourage you to contact Jeff and visit the Employment Litigation section of the MG+M website. 

COVID-19 has impacted the entire planet and the daily lives of all. The pandemic has turned our valued first responders into heroic warriors on the front lines of the battle against the virus. COVID-19 has wreaked a tragic toll upon the population, taking lives and destroying families. At the micro-level, the Coronavirus has turned the incidents of daily life into a herculean task. Social distancing requirements, stay-at-home orders, the closures of schools, businesses and places of social gathering and recreation, restricted travel and limited public transportation have completely disrupted the daily routines and habits of everyone.

Beyond the obvious health related issues, the initial impact of COVID-19 was widely felt through the closures of schools and the closure or severe operational limitations on government and private businesses. Closures, layoffs, furloughs and other austerity measures have become the rule and not the exception. The closures or limited operations of courts both state and federal as well as the disruption to the functioning of law firms may have slowed or delayed various civil employment actions ranging from unemployment claims to discrimination charges to cases under the federal Worker Adjustment and Retraining Notification Act (“WARN”). However, the litigation of such claims by employees is inevitable through individual suits and class actions.

Multiple complaints relating to Coronavirus workplace exposure have been filed with the United States Occupational Safety and Health Administration (“OSHA”). OSHA has issued advisory guidance with recommendations for the workplace and descriptions of health and safety standards including how existing regulations apply to the circumstances created by the COVID-19 pandemic. OSHA issued an interim enforcement response plan for OSHA Area Offices and compliance safety and health officers for handling complaints and reports of Coronavirus. An array of OSHA guidance is available at www.osha.gov.

Like OSHA, the United States Equal Employment Opportunity Commission (“EEOC”) has issued a variety of publications relating to COVID-19, available on its website: www.eeoc.gov. The EEOC emphasizes that despite the closure of its physical offices to the public, the agency remains “virtually” open and accessible by phone and through the EEOC’s website.

The remote work environment fashioned by private and public employers alike in response to the Coronavirus does not mean a suspension of discrimination and equal opportunity laws. There are large, multi-state employers actively seeking to hire tens of thousands of workers to adjust to the overwhelming increase in e-commerce demands. Equal opportunity laws that apply to the hiring process remain in effect. Physical workplace environments already complicated by the internet and smartphones have evolved into virtual workspaces where electronic harassment and discrimination remain a constant issue for employers to monitor.

With reports of new infection rates slowing and evidence of some states of “flattening of the curve,” plans for and initial steps of easing back of restrictions are now evolving and taking place. Following measures taken in countries such as New Zealand and various European nations, some U.S. states are easing lockdown rules and announcing plans to re-open of businesses. In apparent anticipation of the re-opening of vast sectors of the American economy and a corresponding increase in travel, airlines are announcing protective measures ranging from heightened sanitation measures in airports and planes to the wearing of masks by flight attendants and crews to distributing masks to passengers for mandatory or recommended use.

The inconsistencies and contradictions of executive orders, governmental guidelines and regulations from state-to-state and even from one city or town to the next in the U.S. for the “closure” already created a patchwork of ad hoc laws. As a result, the easing of practices going forward creates uncertainty for employers and employees alike for the “opening.”

Georgia has already eased restrictions for certain types of business, some of which are now open, although schools will remain closed through the end of the academic year. At the same time, Massachusetts has extended the Commonwealth’s limits on gatherings and closures of non-essential businesses through May 18th with a stay-at-home advisory remaining in effect. A Massachusetts municipality (Somerville, the most densely populated city in New England) announced a mandatory facial covering order for all public places that becomes effective April 29th that will permit the issuance of a $300 fine for willful non-compliance after a week-long grace period for community adjustment.

Employers with operations in multiple states will face the initial challenge of developing a consistent and coherent plan for returning to operation or full operation while still respecting the divergent guidelines of various states and even adjacent municipalities. Smaller employers and those operating in a single state will still face the challenges of complying with state-wide and local rules as well as the impact created by differing regulations impacting suppliers in other states and other countries.

Irrespective of the size and scope of a particular business, all employers are facing a number of common issues. The multitude of problems encountered by businesses that have continued to operate throughout the COVID-19 crisis with employees physically present in the workplace are instructive and include:

  • workplace rules & guidelines on safety, personal protective equipment (“PPE”), social distancing and enhanced sanitary practices
  • training and internal education on sanitary practices and proper wearing of PPE
  • job and risk classification for possible exposure to individual employee and co-workers
  • adequate supplies of personal protective equipment
  • mandated PPE versus optional PPE
  • employer issued PPE versus privately owned PPE
  • standards for PPE used in the workplace including the question of re-use
  • procedures for donning & doffing of PPE
  • proper storage of PPE
  • proper handling and disposal of used PPE
  • adequate sanitary supplies in the workplace including anti-bacterial soap
  • sanitation practices including disinfecting of the workplace
  • enhanced training where required for handling of cleaning chemicals
  • preventing sick workers from entering or re-entering the workplace
  • screening and testing of workers
  • contact tracing to eliminate the spread or further spreading of the virus
  • reconfiguring the work environment
  • installing barriers and partitions
  • guidelines and training on safe interaction practices between employees and customers or members of the public
  • protocol for common areas and shared spaces including parking areas, entrances & exits, time-clocks, locker rooms and restrooms
  • modifying or eliminating timekeeping procedures such the use of biometric fingerprinting time-clocks

For employers contemplating and planning for the return to a physical work environment amid plans to “re-open” the U.S., the above-listed concerns must be part of a cogent and comprehensive plan tailored to the unique circumstances of each business and work environment with guidelines issued to all employees in advance of any return to work or return to a common work space.

There is a brewing political storm that may have far-reaching consequences for potential liability issues. Concerns over the U.S. food chain triggered a Presidential Executive Order under the Defense Production Act mandating that meat processing plants remain open. In an industry that has seen infections and deaths significant enough to close numerous facilities, the question arises as to the legal and financial responsibility for illness, medical care, death and even potential contamination of the food chain stemming from such orders in accordance with guidance governmental agencies such as OSHA and the Centers for Disease Control (“CDC”).

The U.S. Chamber of Commerce and other business groups are calling for a comprehensive liability shield covering businesses from virus related claims and lawsuits. In March, Congress agreed to a liability shield for the makers of face-masks in order to encourage increased production. Some states have already passed legislation proving healthcare workers with immunity. Whether broader legislation at the state or national level will address the potential immunity from liability businesses beyond healthcare is unclear.

COVID-19 raises both new unique concerns and variations of evolving employment issues. For example, the EEOC issued updated guidelines for the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and other related laws indicating that employers may make inquiry of employees to inquire if they are suffering from COVID-19 symptoms, but this information must be treated as a confidential medical record. The EEOC guidance makes a number of recommendations, observations and cautionary comments, including:

  • The list of associated symptoms concerning which an employer may make inquiry includes fever, chills, cough, shortness of breath, newly developed loss of smell or taste, gastrointestinal issues, nausea, diarrhea, vomiting and sore throat; a list which may be expanded based upon public health authorities such as the CDC and reputable medical sources.
  • Employers may take the temperature of employees during the pandemic, but the information must be treated as confidential and such a measurement is considered a form of a medical examination.
  • Employers can require employees with symptoms of COVID-19 to leave the workplace or to stay home.
  • Employers can request some form of medical clearance for employees to return to work.
  • An employer is permitted to administer COVID-19 testing to employees before they enter the workplace. Positive results can be disclosed (including the name of the employee) to a public health agency.
  • Employers may keep and maintain a log of daily temperature checks of employees entering the workplace as long as the log is maintained as confidential.
  • New hires may be subject to inquiry and screening regarding symptoms of COVID-19 as long as it does so for all new employees in the same type of job. This may include taking a potential employee’s temperature as part of a post-offer, pre-employment medical examination.
  • If an employer requires an employee to start immediately, but the new employee as a positive test result or discloses symptoms of COVID-19 then the employer may withdraw a job offer. However, an employer may not withdraw a job offer because an individual is in a high-risk category but without symptoms of the virus.
  • Employers are recommended to require that employees observe “infection control practices” such as social distancing and regular handwashing in the workplace.
  • The reasonable accommodation requirements of the ADA remain in full force and effect during the pandemic. The mandatory dialogue between employer and employee and flexibility by both employer and employee remain crucial factors in assessing whether accommodation is possible under the current circumstances including temporary job restructuring, temporary transfer to a different position or modified work schedules. At the same time, the case-by-case of reasonable accommodation for an employee and undue hardship upon an employer remain in place but must be treated as flexible in concept and application.
  • The designation of employees as “critical infrastructure workers” or “essential critical workers” as defined by the CDC, does not eliminate the coverage and protections of the ADA or the Rehabilitation Act or any other equal employment opportunity law.
  • Employers should reiterate to their workforce that workplace harassment on the basis of national origin, race and other prohibited bases stemming from the COVID-19 pandemic are unlawful. Reinforcement of these principles to the employer’s supervisors and managers as part of their prevention and monitoring roles is recommended.
  • Employers may require employees to wear PPE in the workplace and observe infection control practices. However, reasonable accommodations under the ADA and religious accommodation under Title VII are still applicable to these rules and requirements.
  • An employer may exclude employees from the workplace with a medical condition that poses a “direct threat” to health or safety of co-workers in the workplace. Employers are required to follow the advice and implement steps that are consistent with the advice of the CDC and public health authorities for the workplace environment at issue.
  • Employers should not engage in unlawful disparate treatment based upon protected characteristics when making decisions relating to screening processes and exclusion of workers from the workplace.

There are a myriad of statutory rights that come into play as a result of the complex regulatory scheme created by federal and state legislation in addition to the ADA and the Rehabilitation Act that have a bearing on an employer’s obligations. These include, but are not limited to, the Family and Medical Leave Act (“FMLA”) and the newly enacted Families First Coronavirus Response Act (“FFCRA”). Many states have legislation that parallel or supplement the FMLA, for example, further complicating decisions by employers.

The FFCRA covers private employers with fewer than 500 employees and is enforced by the federal Department of Labor. The FFCRA, for example, provides a qualified employee with paid sick time if an employee is unable to work at the employer’s place of business or remotely because the employee:

  • is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • has been advised by a healthcare provider to self-quarantine due to COVID-19;
  • is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  • is caring for an individual subject to a quarantine order or has been advised to self-quarantine;
  • is caring for a child whose school or place of care is closed for reasons related to COVID-19; or
  • is experiencing any substantially similar condition specified by the Secretary of Health and Human Services.

Employers contemplating the return to a physical office environment, for example, where the employer is one of many tenants sharing certain common space will be impacted by the decisions of property owners and managers concerning protective measures that may further complicate the employer-employee relationship. These factors may include:

  • policies and procedures for social distancing in common areas as well as entrances/exits to buildings
  • mandatory wearing of face shielding or masks in common areas
  • closure of restrooms or limitations with respect to restrooms in common areas
  • enhanced PPE including disposable gloves for certain common service areas such as mail centers located within common areas of the building
  • modification of delivery services
  • modification of janitorial services

The same or similar issues will arise within the confines of the employer’s tenant space and must be contemplated by any employer planning for a return to work. Such issues should be part of the employer’s guidelines looking ahead to this process and due consideration should be given to:

  • provision and supply of PPE by employers to employees where mandated
  • storage, handling, use and disposal of PPE
  • common area policies within the employer’s space including restrooms and kitchens
  • provision of sanitary supplies within the workplace including anti-bacterial hand wash and soap and wipes
  • mandatory handwashing policies and procedures

Any employer that has transitioned to a remote work platform and now faces the return to a physical work environment should contemplate additional issues beyond benefits and safety including:

  • which employees or class/categories of employees to recall to the physical workspace and which can/should continue to work remotely
  • staggered or layered return to work plans using objective criteria
  • notification to employees regarding return to work including instructions as to conditions or requirements for physical presence in the workplace as a result of COVID-19
  • clear communication to employees regarding returning to work and a response plan for handling refusals to return to the workplace
  • health screening questionnaires or inquiries including disclosure of infection or exposure to infected individuals
  • modified work schedules including rotation of employees between the physical work environment and virtual or remote work platform
  • possible accommodations of employees who refuse or object to returning to the physical work environment
  • internal reporting mechanisms for reporting health and safety concerns including actual or alleged violations of governmental regulations and/or employer policy
  • recognition of and accommodation for modified availability of public transportation in terms of work hours and attendance policies
  • modified policies and procedures for employee travel

Employers must also be cognizant of potential retaliation and whistleblower actions stemming from employee complaints about an employer’s handling of COVID-19 related situations ranging from unsafe sanitary practices, hazardous workplace environments, failure to enforce health measures and retaliatory employment action based employee internal complaints, reporting of violations or concerns to governmental agencies and even social media postings. Retaliation and whistleblower cases are predominantly based on statutes containing anti-retaliation provisions. There are such provisions contained in most employment civil rights statutes for employees who engage in so-called “protected activity” including filing internal complaints of unlawful workplace discrimination and harassment. In addition, actions can be filed in many jurisdictions for common law wrongful termination on the basis of a clearly articulated public policy.

Worker complaints to OSHA about safety issues will garner employee protection against retaliation through the ability to file a claim based on adverse retaliatory employment action. Some states have existing laws providing similar protections such as Massachusetts General Laws Chapter 149 §187 which makes unlawful any retaliatory employment action against healthcare workers by their employers including hospitals, clinics and nursing homes for an employee’s reporting of public health concerns internally or to a public agency.  New Jersey specifically enacted legislation in March of this year barring employers from taking adverse employment action against employees taking or requesting time off from work as a result of an infectious disease (i.e., COVID-19) that could affect others in the workplace based on a written recommendation of a licensed medical professional.

The employer-employee relationship has grown increasingly complicated over the last half-century. The COVID-19 pandemic has magnified and multiplied the levels of complexity already inherent in these relations. The uncertain path of the pandemic and the constantly evolving response and guidance on the attendant issues from federal, state and local government and agencies create substantial uncertainty for employers in the management of risk already incurred as a result of austerity measures, in the present environment and moving forward into the future. Comprehensive legal advice based upon the best available information is a necessity for all employers now more than ever.

For more information, we encourage you to contact Jeff and visit the Employment Litigation section of the MG+M website.