On June 15, 2022, the Environmental Protection Agency (EPA) released new health advisories for drinking water relating to four select classes of per- and polyflouroalkyl substances (PFOA or PFOS) —also referred to as PFAS chemicals. Dubbed “forever chemicals,” and found in such common consumer products as shampoo, food wrappers, and non-stick cookware, PFAS chemicals have gained nationwide attention in recent years both for their extreme bio-persistence and their ubiquity in consumer and personal care products.

In a drastic departure from the agency’s 2016 advisory health limit of 70 parts per trillion (ppt) for PFOA and PFOS, the EPA now recommends limits approaching zero (0.004 and 0.02 for PFOA and PFOS, respectively) based on what it claims to be new medical and scientific research. In addition, the EPA went even further and issued health advisories for “GenX” chemicals and perfluorobutane sulfonate (PFBS) (10 ppt and 2,000 ppt, respectively), two additional PFAS chemicals designed to replace PFOA and PFOS, due to growing concern that PFAS chemicals cause adverse health effects. While today’s guidance acts as little more than a recommendation to local leaders, the EPA reports that it is on track to propose mandatory standards in the fall of 2022. Should the recommended health advisory levels be adopted by the still-pending peer review of the Scientific Advisory Board and processed through the executive rulemaking process, the failure of local water authorities to meet these standards will result in financial penalties.

Maintaining PFAS levels below those suggested in the EPA’s recent guidance will be incredibly difficult, and perhaps impossible, for local water authorities. PFAS have earned their designation as forever chemicals due to their inability to naturally degrade over time. This environmental resistance and water solubility of PFAS, coupled with approximately 80+ years of prevalent use in consumer and industrial products, has resulted in their almost ubiquitous presence in global waterways. The burden to finance the testing, construction, maintenance and operation of PFAS removal systems will fall squarely on local water utilities, which must now prepare to develop systems that can meet levels that fall below even the EPA’s ability to detect. Overburdened and underfunded municipalities faced with this dilemma will almost certainly seek to recover these costs from the manufacturers, producers and suppliers of PFAS chemicals and PFAS-containing products.

The nationwide campaign against the production and use of perfluoroakyl and polyfluoroakyl-containing products continues in California, with the California assembly passing expansive legislation to ban the use of up to potentially 12,000 separate chemicals in cosmetics.

On May 26, 2022, the California State Assembly passed A.B. 2771. Introduced by assembly member Laura Friedman (D-Glendale), the bill seeks to amend the state’s health and safety code to include a complete ban of personal care products that contain intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). If, as expected, some version of the proposed amendment is approved by the senate and governor and enacted into law, the proposed amendment would make the express finding that “PFAS have been linked by scientific, peer-reviewed research to severe health problems, including breast cancer and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption.” It would also make the express finding that “PFAS chemicals have been found in a wide variety of cosmetics and personal care products, including foundation, mascara, lipstick, and various eye and face products.” (Proposed Amendment to California Health and Safety Code Section 108981.)

Friedman, along with many consumer rights advocates, praises the bill as “a critical step towards reducing unnecessary exposure.” The proposed bill is highly problematic, however, from the standpoint of the personal care/cosmetics industry, which represents several billion dollars per year in revenue in California alone. First and foremost, A.B. 2771 drastically expands the existing prohibition against the addition of PFAS into cosmetics, seeking to exclude the use of any “fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” While appearing to be fairly tailored to a single class of chemicals, the EPA’s CompTox Chemicals Dashboard: Master List of PFAS Substances currently reports a total of 12,034 chemicals that fall under A.B. 2771’s description. It is currently unknown how the state will go about enforcing the expansive ban and what PFAS, if any, will take priority in their exclusion. It is further unknown what the precise boundaries of the terminology “intentionally added” will be applied.

At this point, the only thing that can be predicted with certainty is that civil litigation is bound to follow the passage of A.B. 2711 in California—most likely in the form of consumer class actions. For, although A.B. 2711 itself does not provide for civil penalties for violations of the proposed act, California’s Unfair Competition Law (Business & Professions Code Section 17200) permits private citizens to seek an injunction and financial restitution against any business for alleged “unlawful” acts. This broad language, combined with the Unfair Competition Law’s four-year statute of limitations, means that certification of a class of consumers for the purchase of PFAS containing cosmetics could theoretically encompass millions of individual plaintiffs. Restitution on a class-wide basis would require disgorgement of four years of profits for a single company. It is therefore of critical importance for companies to remain up-to-date as these developments continue in order to ensure they can adapt early and often to the imminent changes to their markets.

Massachusetts has officially joined the growing coalition of states—including Colorado, Wisconsin, Michigan and Illinois—who have filed civil suit against the manufacturers and users of poly- and perfluoroalkyl (PFAS) chemicals, also known as “forever chemicals.” On May 25, 2022, Massachusetts Attorney General Maura Healey filed suit against 13 manufacturers of PFAS in firefighting foam. Seeking “costs to clean up and remove, restore, treat, and monitor PFAS contamination and an order requiring the manufacturers to reimburse the state for the damages its products caused,” the suit follows on the heels of last month’s recommendation by the Massachusetts PFAS Interagency Task Force to ban the sale of products with knowingly-added PFAS by 2030, regulate PFAS chemicals as a class and increase public awareness through education. Filed directly in the US District Court for South Carolina, the state’s suit is destined to join the ever-growing number of cases currently consolidated under MDL No. 2873 In re Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.

While damages were not explicitly stated in the filing, Massachusetts Governor Charlie Baker has been quoted as saying, “Since taking office, our administration has provided over $110 million in funding to address PFAS contamination.” Massachusetts’ entry into PFAS litigation is but one of many signals of the ever-increasing concern amongst municipalities and states regarding the long-term cost of PFAS regulation and remediation. While several states have seen success in bringing claims, the total cost of nationwide remediation is unknown.

Unlike the last major wave of state action against the tobacco industry, however, the gathering wave of litigation against the PFAS industry is complicated by the fact that the federal government required many of the products at issue—such as firefighting foam—to incorporate the exact same chemicals the states now allege are unreasonably dangerous.

The year 2020 upended nearly every aspect of society and affected our personal and professional lives due to the novel coronavirus (“COVID-19”). No business industry was immune to COVID-19’s impact as a significant number of businesses moved employees to remote work, furloughed employees, or laid off employees entirely. As the job market recovers and strategies to combat COVID-19 develop, including testing and vaccines, employers are transitioning employees back to commercial office spaces. In doing so, however, each employer must consider the effect COVID-19 may have on in-person work and must realize that it may need to accommodate various employees due to legitimate health or religious concerns associated with COVID-19 or the vaccines associated with the virus.

AT-RISK EMPLOYEES, COVID-19, AND POTENTIAL REASONABLE ACCOMMODATIONS FOR IN-PERSON WORK

Generally, at-risk individuals for COVID-19 are classified by the Center for Disease Control as individuals with immunocompromised diseases or conditions such as diabetes, high-blood pressure, obesity, cystic fibrosis, and liver disease. “At-risk” individuals also include those with a high risk mental condition, such as depression and anxiety brought on by COVID-19. Though the Equal Employment Opportunity Commission (“EEOC”), one of the leading federal workplace discrimination enforcement agencies, has not commented on whether contracting COVID-19 qualifies as a “disability,” various state and local laws broadly construe what is defined as a “disability” which would likely include COVID-19.[1] As such, an individual at high risk for COVID-19, or someone who has already contracted COVID-19, could qualify as disabled and require reasonable accommodations if an employer requires the individual to return to work.

Under 42 U.S.C. § 12102(1)(A) (Equal Opportunity for Individuals with Disabilities), federal law provides that an individual is entitled to a reasonable accommodation at his or her place of employment if he or she has a “disability” defined as a physical or mental impairment that “substantially limits” a major life activity and that impairment is not transitory or minor. Though COVID-19 is not specifically referenced in section 12102, an employer must likely make a good-faith effort to “reasonably accommodate” the impacted employee under section 12102’s broad “disability” definition. To the extent that individuals who are at high risk for COVID-19 or who have contracted COVID-19 and are entitled to reasonable accommodations, examples of these accommodations may include telework, modified work schedules, job restructuring, and greater accessibility to work facilities (i.e. spaced out work spaces). 42 U.S.C. § 12111 (9); 19 C.F.R. § 1630.2(0)(2). Although teleworking became the norm due to the pandemic, it is not currently a required reasonable accommodation by the EEOC. However, this is likely to change as multiple states have confronted civil suits by terminated employees who opted for remote work due to health concerns associated with contracting COVID-19. EEOC v. Gentiva Health Services, Inc., No. 1:20-cv-03936 (N.D. Ga. Sept. 22, 2020); Peeples v. Clinical Support Options, 2020 U.S. Dist. LEXIS 169167 (D. Mass. Sept. 16, 2020). If an employer reasonably accommodates its employees affected by COVID-19 by allowing them to work remotely, an employer should also protect its own interests and request its employees execute a teleworking agreement that includes set standards on timekeeping, availability during the work day, work location for tax purposes, and an employer’s right to require periodic in-person reporting to a worksite. In short, an employer should strike a balance to accommodate an impacted employee which will insulate it from potential liability and also ensure the impacted employee conforms to the employer’s work policies and procedures as practically as possible.

VACCINES, TESTING AND RETURING TO THE OFFICE

Can an employer mandate an employee get vaccinated before returning to the workplace? Yes, but it must make a reasonable accommodation for those who refuse the vaccine even if mandated by federal or state government.

Understandably, the most critical question for employers as they transition to in-person working is whether they can obligate employees to receive a COVID-19 vaccine before returning to work. On December 16, 2020, the EEOC issued a technical assistance publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” [2] Based on the EEOC’s guidance, employers can mandate vaccination without any showing that it is required and necessary for employment and can require proof of vaccination before employees are allowed to return to work. This gives significant power to an employer to place requirements on an employee’s return to work and insulates the employer from possible liability for vaccine mandates before returning to work.

More recently, effective June 17, 2021, the Division of Occupational Safety and Health in California (“CAL OSHA”) enacted new regulations for return to workplaces and employer requirements. In summary, CAL OSHA’s regulations require employers to document that employees are fully vaccinated and the regulations further instruct that employers can accept a self-attestation as proof of vaccination. Vaccinated employees do not have to maintain social distancing and can shed masks indoors or outdoors (subject to local or county mask mandate policies). On the other hand, unvaccinated employees must still wear face coverings indoors and maintain social distancing. The new regulations also place additional burdens on employers to provide masks to employees upon request, provide free testing in the event of a workplace COVID-19 outbreak, and temporarily exclude employees from the workplace if they experience COVID-19 symptoms, regardless of vaccination status.[3] Similarly, President Joe Biden also announced that all businesses, public or private with more than 100 employees, must ensure that employees are vaccinated or provide weekly testing to unvaccinated employees, though this is being challenged in federal court.[4]  As such, employers should be prepared to document its employees’ vaccination status or provide weekly testing to unvaccinated individuals.

In general, an employee is not obligated to get vaccinated even if his or her employer mandates vaccination as part of its return to work policies. Under EEOC protections, if an employee refuses the vaccine, an employer cannot retaliate or single out the employee and must ensure that the employee is not subject to adverse working conditions for refusing the vaccine.  See 29 C.F.R. § 1630 et seq.; Ruggiero v. Mount Nittany Medical Center, 736 Fed. Appx. 35 (3d Cir. 2018). The employer should first make a “reasonable accommodation” for the employee in the workplace, such as a modified work schedule, altering their workspace, or offering remote work. If the employer determines a reasonable accommodation within the physical work space would constitute an “undue hardship” on the employer’s business and the employee’s presence in the workplace constitutes a “direct threat”, then the employer may exclude the employee from the workplace altogether and instead offer the employee a remote work accommodation. The employer must make the following showing to demonstrate the employee constitutes a “direct threat:” (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 42 U.S.C. § 12111.

It is important to note that even if an employer determines that the employee’s presence in the workplace constitutes a direct threat, the employer may not immediately terminate the employee; it can only exclude the employee from the workplace. This determination would generally lead most employers to offer remote work as a means of “exclusion” from the workplace; however, for some industries remote work is not feasible. After exhausting all viable accommodation options, and after the employer carefully considers the employee’s rights under federal, state or local laws, such as providing medical leave or temporary disability, the employer may then determine if termination is the appropriate final step to end the employment relationship.

CONCLUSION

Employers must take precautions when their employees return to the workplace in the wake of COVID-19. While new federal and state guidelines mandate vaccines or weekly testing, employers must honor an individual employee’s decision to refuse the vaccine, for medical based reasons or for religious reasons, and try to reasonably accommodate that employee. Employers should consider a variety of reasonable accommodations, such as remote work/teleworking, modified work schedules and changes to its physical workspace before deciding whether it is necessary to take exclusionary action against the subject employee.  In the event that an employer cannot reasonably accommodate an employee and if the employer determines the employee is a “direct threat” to the workplace, then it may exclude, but not immediately terminate the employee. Though an employer may have grounds to ultimately terminate an employee for refusing the COVID-19 vaccine, it must exercise extreme caution in view of protections offered by federal, state, and/or local laws before terminating the employee. It is critical that employers implement coherent return-to-work policies that include well-defined vaccination protocols, indoor social distancing requirements, policies that clearly articulate reasonable accommodations for employees impacted by COVID-19 and for unvaccinated employees.

[1] Various localities in New Jersey, Pennsylvania, New York have issued protections that actual or perceived infection with COVID-19 is a protected disability, while COVID-19 could likely qualify as a disability under a state’s expansive definition.

[2] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[3] For various state COVID-19 “return-to-work guidance,” please see: https://crownworkspace.com/us/knowledge-base/us-state-by-state-return-to-work-covid-19-guidelines-and-employer-resources/

[4] https://www.whitehouse.gov/covidplan/

Last year, the American Transportation Research Institute (ATRI) published a comprehensive analysis on the notable increase in verdicts over $1 million in the trucking industry. ATRI’s 2020 study, Understanding the Impact of Nuclear Verdicts on the Trucking Industry, received significant attention, ultimately prompting ATRI to investigate verdicts and settlements in the trucking industry under $1 million.[1] As such, last month, the ATRI published The Impact of Small Verdicts and Settlements on the Trucking Industry.[2] Unlike the sensational multi-million dollar nuclear verdicts, these “smaller” payouts seemingly have little effect on motor carriers and insurance agencies. However, there is a general consensus in the trucking industry that small settlements and verdicts are increasing in both frequency and severity.

ATRI’s research focused on: (1) identifying the legal conditions that cultivate the small litigation cases in the trucking industry; (2) assessing the relationship between small payouts and increasing insurance rates; (3) quantifying the impact of crash characteristics and litigation factors on payment size; and (4) quantifying the impact of crash characteristics and litigation factors on settlement timing.[3] In advancing these four objectives, ATRI analyzed litigation data from 641 cases, over the course of 14 years.[4] Notably, the study only considered data from cases involving some form of litigation; the data did not include pre-suit settlements.[5]

The Impact of Small Verdicts and Settlements on the Trucking Industry provides key insight into the current climate of the trucking industry while also anticipating future trends in trucking litigation. The report contains several noteworthy conclusions. For instance, the study showed that settlements in trucking cases were approximately 37.7% larger than verdicts.[6] The type of injury also affected whether a case settled or resulted in a verdict. Cases involving a fatality were 393% more likely to settle and cases with a severe injury were 217% more likely to settle than reach a jury.[7]

Furthermore, ATRI’s investigation into how alleged driver infractions affected smaller payouts reinforces the importance of carrier safety practice.[8] Alleged driver infractions that resulted in the largest payouts did not uniformly relate to the accident giving rise to a plaintiff’s claim.[9] ATRI noted that “[p]oor driver history and other alleged carrier infractions can prove especially costly because they spark additional jury sympathy on the basis of corporate ethics and culture.”[10] The data also connected poor driver history with poor hiring practices, inadequate training, and vicarious liability.[11] This correlation reinforces the importance of motor carrier oversight through programs like driver onboarding and training programs to reduce payouts.[12]

ATRI also discussed how the venue of a particular case affected the payout value of smaller claims.[13] Data from states including California, New Jersey, and Michigan (all deemed “judicial hellholes”) revealed average payments significantly above the national average.[14] For example, California had an estimated average payment amount of $588,231, or 56.1% above the national average.[15] Interestingly, ATRI identified one state, Tennessee, with predicted lower than average payments.[16] In making this distinction, ATRI noted that between 2011 and 2013, Tennessee enacted limits on noneconomic and punitive damages awarded to plaintiffs and further restrictions on attorney advertising.[17]

In light of the conclusions reached in the ATRI report, it is no surprise that lawsuit abuse reform is of growing interest in the transportation field as a way to help curtail the frequency and severity of these smaller payouts. In fact, ATRI ranked “lawsuit abuse reform” as the fourth highest issue of concern in ATRI’s 2021 Critical Issues in the Trucking Industry list – behind only driver shortage, driver retention, and driver compensation.[18] In an effort to address lawsuit abuse concerns, ATRI proposed advocating for the elimination of phantom medical damages and educating motor carriers and law enforcement on the identification of staged accidents.

Indeed, some states have already advanced trucking lawsuit abuse reform initiatives in 2021. For example, in June 2021, Texas Governor Greg Abbott signed House Bill 19 into law.[19] This legislation intends to level the litigation playing field for truckers through a variety of initiatives, such as widening the admissibility of photographs and videos of a vehicle involved in a collision. The Bill also includes a provision bifurcating accident trials, specifying that the first phase of a trial involves evidence of fault, while the second phase determines allegations of unsafe motor carrier safety practices. Put another way, under the new Texas law, a court must first find a driver liable before a case can be brought against the motor carrier that employs that driver. Similarly, the Iowa legislature has introduced a series of lawsuit abuse reform bills, one of which would limit recovery of noneconomic damages for personal injury or death in civil cases to $1 million for commercial motor vehicle owners in the case of an employee’s negligence.[20] Moving into 2022, we should expect to see more tort reform bills aimed at curtailing both the frequency and severity of small settlements and verdicts in the trucking industry.

It is clear that ATRI’s The Impact of Small Verdicts and Settlements on the Trucking Industry illustrates that similar to the multi-million dollar nuclear verdicts, “smaller” payouts also have a significant effect on motor carriers and insurance agencies in the trucking industry. Thankfully, the report provides key insight into the crash characteristics and litigation factors that influence both payment sizes and settlement timing. The report highlights the importance of motor carrier oversight through programs like driver onboarding and training programs to reduce payout amounts. Finally, by comparing trucking litigation payouts between states, ATRI draws attention to a growing focus of the trucking industry: lawsuit abuse reform.

[1] Dan Murray, Nathan Williams & Erin Speltz, Understanding the Impact of Nuclear Verdicts on the Trucking Industry, American Transportation Research Institute (June 2020).  

[2] Claire Evans & Alex Leslie, The Impact of Small Verdicts and Settlements on the Trucking Industry, American Transportation Research Institute (Nov. 2021).

[3] ATRI identified crash characteristics as factors such as the number of vehicles involved in the crash, alleged faults on the part of the driver or motor carrier, and the injuries sustained by the plaintiff. Litigation factors included the presence of expert witnesses, the location of the crash, and whether the case was tried in state or federal court. Id. at 6.

[4] Id. at 10.

[5] Id.

[6] Id. at 32.

[7] Id.

[8] Id. at 18.

[9] Id. at 18.

[10] Id.

[11] Id. at 19.

[12] Id.

[13] Id. at 13.

[14] Id.

[15] Id. at 13-14.

[16] Id. at 14.

[17] Id.

[18] Critical Issues in the Trucking Industry – 2021, American Transportation Research Institute (Oct. 2021).

[19] Tex. H.B. 19, 87th Leg., R.S. (2021).

[20] Iowa S.F. 537, 89th Gen. Assemb. (2021).