Top Developments in COVID-19 Litigation

September 20, 2021

Jason A. Levine, Gillian H. Clow, and Giles Judd

OVERVIEW

This post’s top COVID-19 litigation developments are: Arizona’s lawsuit challenging the Biden Administration’s recent vaccination mandates; a Massachusetts Supreme Judicial Court decision broadly applying a prior emergency order that tolled the deadline for civil lawsuits due to the pandemic; StubHub’s settlement of state lawsuits over its pandemic refund policy; and an EEOC lawsuit against an employer for its alleged failure to reasonably accommodate a worker who was allegedly at high risk if she were to contract COVID-19.

1.  President Biden’s COVID-19 Vaccination Mandate Spurs Lawsuit

Overview:  On September 9, 2021, President Biden issued a COVID-19 vaccine mandate for federal workers and contractors.  He also announced a plan for the Centers for Medicare & Medicaid Services to require a similar mandate for individuals working at most health care facilities receiving Medicare or Medicaid funding and for the Department of Labor’s Occupational Safety and Health Administration to require employers with more than 100 employees to require their employees to get vaccinated or opt into a weekly testing program, with paid time off provided for vaccinations.  President Biden’s new COVID-19 plan also urges States to require vaccines for teachers and other school staff, and calls upon stadiums, concert halls, and other large event venues to require either proof of vaccination or a negative COVID-19 test prior to entry.

The Cases:  Arizona’s Attorney General was the first State Attorney General to file a lawsuit challenging President Biden’s mandates.  Arizona argues that President Biden’s mandates unconstitutionally discriminate on the basis of national origin because he has “disclaimed any COVID-19 vaccination requirement for unauthorized aliens,” notwithstanding the fact that “COVID-19 is prevalent among migrants,” while imposing numerous such mandates on American citizens.  The complaint argues that this discrimination in favor of unauthorized aliens violates the equal protection component of the Fifth Amendment’s Due Process Clause.

Our Take:  The Arizona lawsuit may be the first to challenge President Biden’s new mandates, but we do not expect it to be the last.  As has been the case throughout the pandemic, mask mandates and vaccination requirements have been ripe for dispute.  We expect to see additional legal challenges filed after CMS and OSHA issue their respective rules.

2.  Massachusetts Supreme Judicial Court Tolls Civil Suit Filing Deadlines

The Order:  The Massachusetts Supreme Judicial Court confirmed in a recent opinion that its emergency order tolling civil suit filing deadlines during the early days of the pandemic has broad applications.  At issue before the court was whether plaintiff’s lawsuit – filed after the three-year statute of limitations had expired in September 24, 2020 – was timely in view of the court’s order declaring that “[a]ll civil statutes of limitations were tolled . . . from March 17, 2020 through June 30, 2020.”  The defendant argued that the order should only apply to civil actions that expired within that window, but the court said that “‘[a]ll’ means all.”  The court declined defendant’s request to narrow its order, citing state and local restrictions to combat COVID-19 that also restricted the ability of attorneys and litigants to prepare their claims.

Our Take: Although not every State issued emergency orders tolling filing deadlines, this opinion underscores how emergency measures taken during the pandemic may have repercussions that are felt long after those measures ceased.  We also expect that other plaintiffs – both in Massachusetts and elsewhere – may try to use this opinion to argue that tolling is warranted on “equitable” grounds due to COVID-19 restrictions.  It remains to be seen whether such arguments will be accepted.

3.  StubHub Stipulates to Eleven Consent Judgments Ending Refund Suits

Overview:  StubHub, the operator of an online marketplace for second-hand ticket purchases, entered into consent judgments with the attorneys general of ten States and the District of Columbia, effectively ending multiple suits over its alleged failure to refund consumers for ticket purchases canceled as a result of the COVID-19 pandemic.

Background:  Before March 2020, tickets purchased on StubHub were backed by a refund policy that provided cash refunds to consumers who purchased tickets for canceled events.  On March 25, 2020, following the categorization of the COVID-19 outbreak as a global pandemic, StubHub changed its refund policy to provide a credit to consumers in lieu of a cash refund for canceled events.  This change sparked consumer complaints across several States, leading to formal investigations by multiple state attorneys general which, in turn, were followed by suits against the ticket reseller for alleged violations of state consumer protection laws.  On May 3, 2021, StubHub announced that it would provide cash refunds, unless the buyer elected an account credit in lieu of a refund.  It contends that it was unable to provide cash refunds before that date due to the unforeseen effects of the pandemic on its business operations.  The consent judgments provide for StubHub to honor this cash refund policy in exchange for certain releases and substantial payments to each settling State, including $424,250 to the State of Maryland, $382,500 to the State of Indiana, and $334,550 to the State of Arizona.

Our Take:  Much of the COVID litigation on which we report has involved private parties, but it is important not to forget the State-led litigation.  Although States have enacted laws to shield business from some pandemic-related liability, the StubHub investigation is a good example of how State laws may also be used as a sword against business. 

4.  EEOC Files Suit Against Employer for Failure to Make Reasonable Accommodations for Employee at High Risk for Contracting COVID-19

Overview:  The EEOC filed its first suit under the ADA on behalf of a Georgia employee who was allegedly terminated after her employer denied requests for reasonable accommodations based on her risk level for contracting COVID-19. 

Background:  According to the EEOC’s complaint, on March 4, 2020, Ronisha Moncrief, a Health Safety & Environmental Quality Manager for ISS Facility Services, Inc. at its manufacturing facility in Georgia, was diagnosed with Obstructive Lung Disease.  Ms. Moncrief’s doctor recommended that she work from home and completed an ADA Reasonable Accommodation Request Medical Certification form.  Around this same time, ISS employees began working primarily from home due to the outbreak of the COVID-19 pandemic.  In June 2020, however, ISS required all employees to return to the workplace, at which time Ms. Moncrief requested an ADA accommodation to work remotely for two days a week, asserting that her disease made her high risk for contracting COVID-19.  That request was denied, and in September 2020 Ms. Moncrief was terminated due to “performance issues.”  The EEOC alleges a violation of the ADA on Ms. Moncrief’s behalf and seeks injunctive relief, back pay, compensation for future monetary loss, compensation for non-pecuniary losses such as emotional distress, and punitive damages.

Our Take:  As more businesses are preparing for a return to office work for their employees, they should give due consideration to accommodation requests for those who are deemed “high risk” if they contract COVID-19, or for those who may already be suffering from “Long COVID.”  The EEOC’s suit, and its earlier guidance regarding “Long Covid,” indicates that it views such employees as qualified individuals with disabilities under the ADA entitled to reasonable accommodations. 

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP.  Gillian Clow and Giles Judd are litigation associates at the firm.