Spilman Thomas & Battle, PLLC
July 13, 2020 - Charleston, West Virginia
Unprecedented: COVID-19 Litigation Trends, Issue 15
by Joseph A. (Jay) Ford, Sarah E. Kowalkowski, Joseph V. Schaeffer, James C. Walls III, Chelsea E. Thompson, Risa S. Katz-Albert
|This 15th edition of Unprecedented, our weekly update on COVID-19-related litigation, showcases new and evolving trends. This week we note how COVID-19 has accelerated a pre-existing trend toward class action litigation. And we discuss specific trends involving workplace safety, mask requirements, shutdown orders, quarantine enforcement, and prisoners’ rights. These cases, and others like them, show no signs of cooling down as the summer heats up.
We hope you find these cases, and the questions they raise, to be informative.
What level of protection is needed for frontline workers?
The Local Joint Executive Board of Las Vegas, a joint bargaining agency that represents numerous unions in the hospitality industry, filed suit in the United States District Court for the District of Nevada against three prominent Las Vegas hotel-casinos. Through this action, the Joint Board seeks to enjoin these hotel-casino Defendants from “promulgating and following unreasonable rules and procedures” related to union members’ safety and the Defendants’ response to confirmed COVID-19 cases. According to the Joint Board’s complaint, workers at Defendants’ hotel-casinos have contracted COVID-19 due to the Defendants’ insufficient safety precautions, such as the recommendation (rather that the requirement) for guests to wear face masks. Compounding this problem, the Joint Board alleges that the Defendants failed to take appropriate corrective actions in response to their workers’ positive COVID-19 results in failing to immediately conduct contact tracing and failing to immediately notify workers of their potential exposure. The Joint Board requests an injunction that will require Defendants to improve their procedures to protect workers from contracting COVID-19 and their procedures for responding to known outbreaks among their workers. The Joint Board’s complaint can be found here, and news coverage can be found here.
Some states are beginning to offer limited legal protections from lawsuits related to COVID-19. The governor of Tennessee entered an executive order effective July 2, 2020 that provides liability protection for health care providers in lawsuits related to contraction of, or suspected contraction of, COVID-19, except in cases of gross negligence or willful misconduct. The order remains in effect until July 31, 2020 but may be extended. The Tennessee legislature has discussed granting COVID-related liability protection to businesses in other industries but has not reached an agreement. The governor’s order can be found here, and news coverage can be found here.
Will the number of class actions continue to trend upward in this new legal environment?
Even before the COVID-19 pandemic made its way across America, class action lawsuits had been on the rise. Now, COVID-19 has caused that trend to pick up even more steam. As of the end of May 2020, at least 560 COVID-19-related class actions had been filed. About half of these new claims involve business interruption insurance coverage or education refunds. Many more cases seek refunds from gyms, entertainment venues, airlines, and other service providers who were forced to cancel or postpone services as a result of the pandemic. News coverage about this uptick in class action litigation is available here.
Are prisons doing enough to protect inmates during the COVID-19 pandemic?
The Southern Center for Human Rights and the American Civil Liberties Union of Georgia have filed a federal lawsuit against the Clayton County (Georgia) Sheriff and members of his staff on behalf of four people held in the Clayton County Jail, seeking to make it into a class action. Among the allegations that the jail is understaffed, unsanitary, and failing to reasonably respond to the known risk of a COVID-19 outbreak, plaintiffs allege constitutional violations to the inmates' rights in the form of cruel and unusual punishment and due process issues. Damages sought include an order to release or transfer some of the inmates, specifically those most medically vulnerable, as well as improving jailhouse conditions through better social distancing measures and providing personal protective equipment. As of June 11, 2020, forty-five people (thirty-two inmates and thirteen employees) had tested positive for COVID-19, and it appears that the only cleaning supplies afforded to inmates are toilet paper and four fluid ounces of liquid soap per inmate per week, which are designated as their personal hygiene supplies. Further, the lawsuit alleges that the jail is 96% full, and cells that usually house only two inmates are being used for three or four people at a time. Of note, this is the third federal lawsuit against Clayton County's sheriff since June 2020, the others pertaining to excessive force and the Georgia Open Records Act in relation to information about COVID-19 testing in the facility. A legal advisor for the Clayton County Sheriff's Office has issued a statement that there is no outbreak in the facility and that they will defend against the claims in court. News coverage is available here.
Are businesses in a Catch-22 over mask requirements?
Some consumer-facing businesses are now required by law to enforce mask requirements, and others have done so voluntarily to protect customers and employees. But a new wave of lawsuits suggests that businesses are facing a Catch-22 over these requirements—either ignore them and face criminal liability or tort lawsuits from COVID-19-positive customers and employees, or enforce them and face lawsuits under the Americans with Disability Act or similar state laws.
The Pittsburgh-area theme parks of Kennywood, Sandcastle, and Idlewild are the latest to experience this conundrum, which already has affected the Giant Eagle grocery chain. In a recent lawsuit against the theme parks, the plaintiffs, who allege that either they or their children suffer from autism or muscular dystrophy, argue that they are unable to wear masks because of breathing or sensory issues. These facts, according to the plaintiffs, should exempt them from the theme parks’ mask requirements under either Pennsylvania Governor Wolf’s order or the ADA. Nonetheless, the plaintiffs allege that they have been denied entry to the parks and lost the benefit of their season passes. They accordingly request an injunction against the mask requirement and compensatory and punitive damages. News coverage of the lawsuit is available here, and the complaint is available here.
What prompted litigation over shutdown orders this past week?
The Republican National Committee and President Trump’s plans to hold their convention in Jacksonville, Florida ran into a potential roadblock last week when a group of Florida residents, putatively representing the State of Florida, sued to prevent the convention from going forward. The plaintiffs allege that the RNC convention will be a public nuisance because it will bring thousands of people together in close proximity, under conditions likely to spread the novel coronavirus, and in an area already experiencing elevated infection rates. They ask the court for an order closing the convention’s planned location or, alternatively, conditioning the convention’s occurrence on compliance with now-familiar mitigation guidelines, such as social distancing and disinfectant measures. A copy of the complaint is available here.
As COVID-19 resurges in the U.S., can governments enforce quarantines?
Lawsuits across the country have challenged the state's various stay-at-home orders and quarantine mandates, and we have been tracking and reporting on their progress. Now, we have seen the exact opposite type of lawsuit -- where a governmental entity is suing an individual to enforce the quarantine. Hunt County is home to roughly 96,000 people in northeast Texas and is working to combat COVID-19 and was subject to the Texas Governor Greg Abbott's March 31, 2020 stay-at-home order. That order has since been lifted, and Texas had a phased reopening beginning on or about May 1, 2020.
As part of its efforts to combat COVID-19, Hunt County created a fund that provides compensation to individuals who tested positive for COVID-19 to allow them to complete the mandatory quarantine without the financial pressure to return to work. Despite this financial assistance, Hunt County became aware that individual(s) who had tested positive for COVID-19 were nonetheless blatantly ignoring the mandated quarantine period, and continuing to go to work, go shopping, and otherwise interact with the community. Despite clear warnings and instructions to stay home until testing negative, the individual(s) continued to go into the community. In response, on July 1, 2020, Hunt County filed a lawsuit seeking a judicial order requiring an individual who had tested positive for COVID-19 to stay home until he/she/they tested negative. This case was sealed pursuant to HIPAA to protect the individual's privacy. The Court granted the order within a week, providing one of the first uses of the legal system to actually enforce a quarantine mandate.
This lawsuit comes on the tails of some of Texas' record-breaking days for new infections. The seven-day positive testing rate (the percentage of positive cases to tests conducted averaged over seven days) for COVID-19 in Texas has reached 16.3% -- a record-breaking number that surpasses anything previously seen. Hospitals also are affected, as the number of Texans hospitalized for COVID-19 has reached new record highs each day of the last 2 weeks. A week ago, Governor Abbott admitted that “COVID-19 is now spreading at an unacceptable rate in Texas.” This rapid spread of COVID-19 explains, in part, why Hunt County sought legal enforcement of a mandated quarantine on an individual with COVID-19. Hunt County is likely not an anomaly--Brooks County, in southern Texas, has also publicly warned that it intends to arrest and prosecute individuals who test positive for COVID-19 and flout mandatory quarantine. It is something to keep an eye on, particularly as some members of Texas' Congress are calling for a new, state-wide stay-at-home order. After all, Texas is only one of many states seeing a vicious resurgence of COVID-19 infection. News coverage can be found here and here.
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