COVID-19 Reading List

July 10, 2020

Jonathan D. Urick, U.S. Chamber Litigation Center

This week’s reporting and commentary on COVID-19 litigation focused on an “exponential” increase in workplace litigation, a potential wave of False Claims Act lawsuits related to CARES Act funds, the continuing debate over federal liability protections, and the complexities of liability waivers.

Current and Anticipated Litigation Trends

In a post on JD Supra, Fisher Phillips attorneys report that, based on the firm’s case tracking, June saw an “exponential increase in the number of [coronavirus] claims involving disputes between workers and employers.”  According to their calculations, June featured a 30% increase in new filings compared to such filings during May, and a 103% increase compared to April. 

The attorneys also report “a steady increase in the number of class action lawsuits filed.”  Individual actions tend to allege employment-discrimination and work-from-home/leave claims, while class actions against employers largely allege unsafe working conditions and wage-and-hour claims.  The leading havens for such litigation seem to be California, Florida, and New York.

Also writing on JD Supra, attorneys from Mintz discuss the potential coming wave of False Claims Act investigations and lawsuits against companies that have received COVID-19 relief funds under the CARES Act.  This wave, they predict, will likely come from both qui tam relators and DOJ enforcement.  “History demonstrates that when the government dispenses substantial relief funding, it seeks to recoup funds through oversight and enforcement.”

More Calls for Federal Liability Protections

The Washington Post reports that, on Monday, Senate Majority Leader Mitch McConnell called for five years of “narrowly crafted liability protection” for businesses, health-care providers, universities, and schools as part of the next coronavirus relief bill.  “Unless you’re grossly negligent or intentionally engaged in harmful behavior, you shouldn’t have to be penalized by getting sued on top of everything else, so that’ll be in there, I guarantee it,” McConnell said.  The Post predicts that, when Congress reconvenes on July 20, negotiations over the bill “promise to be contentious” because “Democrats have strongly opposed such liability protections.”

At Forbes, M. Peter McPherson, president of the Association of Public and Land-grant Universities, echoes these calls for federal liability protections.  He argues that, “[t]o enable the prudent reopening of campuses, Congress should pass legislation providing safe harbor to institutions that work diligently in good faith to protect the health of students, faculty, and staff.” 

McPherson warns that, “[a]s institutions consider steps they’ll take to reopen, the specter of enormously expensive litigation costs looms large,” and, as a result, “[m]any institutions may choose to limit operations because the legal risk is simply too great.”  He clarifies, however, that “universities don’t require and are not requesting an all-encompassing shield from liability,” but are only seeking “temporary and limited liability protections…for institutions that comply with applicable public health agency requirements.”

The ABA Journal discussed state liability protections.  According to research by the American Tort Reform Association, thirteen states and the District of Columbia have passed COVID-19 laws limiting the liability of health care providers and businesses.  But the precise coverage of these laws varies by state.  The governors of 23 states have also issued executive orders limiting the liability of health care providers and some businesses.

More on Liability Waivers

Finally, the same ABA Journal article joined a growing list of others examining the effectiveness of coronavirus lability waivers.  “As businesses reopen,” the article reports, “the practice of asking customers to sign COVID-19 liability waivers is increasing throughout the United States, but it is uncertain how much weight those waivers will carry in court.”  According to one attorney interviewed for the article, “No one really knows how this is going to shake out. This is unchartered territory.” 

This attorney further warned that “COVID-19 waivers do not provide complete blanket immunity to businesses from lawsuits” because “they don’t apply to intentional or wanton conduct or gross negligence claims.”  He advised that any business considering requiring customers to sign a waiver should write one “that is narrowly tailored” to the specific business, using “clear and unambiguous and easily understandable” language. 

Other interviewed attorneys warned that liability waivers may not be enforceable in certain states, and might not be enforceable anywhere for certain employment-related claims covered by state workers-compensation laws.  Discussing similar issues, Newsday this week also published a close look at liability waivers.

The ABA Journal article also discussed the ongoing debate over federal and state coronavirus liability protections.  According to research by the American Tort Reform Association, thirteen states and the District of Columbia have passed COVID-19 laws limiting the liability of health care providers and businesses.  But the precise coverage of these laws varies by state.  The governors of 23 states have also issued executive orders limiting the liability of health care providers and some businesses.