COVID-19 Reading List

October 9, 2020

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

Some highlights of this week’s reporting and commentary on COVID-19 litigation include the continued increase in state-court suits, legal challenges to state emergency orders, workplace-vaccination polices, the mask-related dilemma facing businesses, and recent decisions on contractual defenses.

State Suits Rising?

According to CPA Practice Advisor, “COVID-19 cases continue to rise following record numbers of new cases reported over the past few months in California, Florida, Texas, and several other states.”  The article also examines why workers’-compensation claims have not increased along with coronavirus employment litigation.

Michigan Supreme Court Strikes Down State’s Emergency COVID Orders

Legal Newsline reports that the Michigan Supreme Court has struck down Gov. Gretchen Whitmer’s COVID orders as exceeding her emergency powers under state law.  The invalidated orders had imposed social-distancing requirements as well as a face-mask mandate.  The Detroit News also reported on the court’s decision.

Third Circuit Stays Ruling Striking Down Pennsylvania COVID Orders

By contrast, according to the Pennsylvania Record, the U.S. Court of Appeals for the Third Circuit has stayed pending appeal a lower court’s ruling declaring unconstitutional Pennsylvania Gov. Tom Wolf’s emergency coronavirus measures.  The stay keeps in place restrictions on crowd sizes.

Workplace Vaccination Policies

“As progress toward a safe COVID-19 vaccine continues to unfold,” the Northern California Record explains, “businesses have begun to evaluate the different legal avenues they’ll need to consider for workplace vaccination policies.”  According to USC Law Prof. Thomas Lenz, however, employers are not advised to mandate a vaccine for their workers.  “Before insisting or requiring something, they need to gauge the safety of the vaccine and make sure employees are not in a protected class, like disability or a religious faith or practice which would object to a vaccination,” Lenz said. 

He cautioned that the Americans with Disabilities Act may require employers to work out an accommodation for employees who cannot take a coronavirus vaccine for a medical reason.  Labor laws may also require communication with unions before imposing a workplace vaccine mandate.

Mask-Related Lawsuits

Over at JD Supra, Morrison Foerster attorneys examine some “recently filed putative class action lawsuits” that illustrate how “plaintiffs and their attorneys are . . . seeking ways to turn mask issues into litigation.”  “With so many constituents,” the post’s authors conclude, “businesses may feel as if they are caught between a rock and a hard place. On one hand, customers are suing businesses for requiring them to wear masks. On the other hand, employees are suing them for not enforcing mask-related policies and guidelines.”

“In developing their COVID-19 protocols, businesses must simultaneously consider their obligations as public accommodations to customers and other visitors and their obligations as employers. Doing so requires not only knowledge of applicable rules and guidance but also an eye toward flexibility.”

Contractual Defenses

Writing at Lexology, IceMiller attorneys summarize “decisions from [coronavirus] lawsuits involving force majeure contractual provisions and other equitable defenses to contract performance,” such as impossibility and frustration of purpose.  For what it’s worth, the attorneys conclude that “[a]s these cases and others work their way through the trial courts, and eventually appellate courts, we can expect to see more case law on these issues,” but for the time being, “the decisions are highly fact specific and difficult to generalize about.”