BY PAMELA LANGHAM, ESQ.
SINCE THE ONSET OF THE PANDEMIC, a majority of states have implemented some form of “immunity” or COVID-19 “shield law” against negligence claims related to COVID-19. Maryland has not. Many businesses and healthcare facilities are immune from liability in the states that have adopted shield laws unless a party can prove gross negligence. That being said, even though there is no immunity from civil cases in Maryland from COVID-19 related injuries, a party in Maryland will still need to prove causation in order to prevail, which is no easy task.
A party in Maryland has an uphill battle in proving causation in any COVID-19 civil litigation claim based upon negligence. In workers’ compensation cases, workers may be able to prove under Maryland’s workers’ compensation laws that contracting COVID-19 in the workplace is a compensable injury as an “occupational disease.” Some workers who were required to work on site during the pandemic continuously will have an easier time proving compensability in their workers’ compensation case than others—for example, nurses or store clerks who were exposed to members of the public on a continual basis.
Lex Machina’s February 2022 Law Firms Activity Report,1 traditionally used by corporate counsel to allocate legal resources, assign monitoring of cases, analyze risk, and hire outside counsel, reflects COVID-19’s impact on litigation.
According to the ABA’s Business Law Section, “several of the most active law firms involved in COVID Cases filed cases under the American Disabilities Act (the “ADA”) or alleged employment claims.”2 This is also reflective of the increased litigation related to “vaccine mandates, disability discrimination, whistleblower retaliation, and lack of protective equipment, among other claims.”3
Corporate counsel should keep apprised of these types of cases and monitor them closely. Below is a summary of recent litigation involving some of the trends in COVID-19 related litigation.
COVID-19 and The Americans with Disabilities Act
Is COVID-19 a disability?
Federal courts are struggling with whether a diagnosis of COVID-19 constitutes a disability under the ADA. In December 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance, clarifying that COVID-19 may qualify as a disability under the American with Disabilities Act (ADA). One of the distinctions between a COVID-19 diagnosis qualifying as a disability is whether the symptoms of COVID-19 are acute as opposed to long-term. The EEOC has determined that COVID-19 can fit the description of a disability if the long-term effects of the virus affect bodily functions and limit major life activities, e.g. ongoing headaches, difficulty remembering, or concentrating that a doctor attributes to COVID-19, an individual receiving supplemental oxygen for breathing difficulties or shortness of breath, other virus-related effects that last, or are expected to last, for several months, or an individual diagnosed with “long COVID.” The EEOC has provided guidance on whether COVID-19 may qualify as a disability under the ADA.4
Several federal courts have determined that the long-term effects of COVID-19 are a disability. In Brown v. Roanoke Rehabilitation & Healthcare Center,5 the employee plaintiff contracted COVID-19 and was ordered to isolate for 14 days by her physician, which was consistent with the CDC requirements at the time. The employer ordered her back to work before the end of her 14-day isolation period. Brown refused, and her employer terminated her employment for her refusal to return to work. The employee’s lawsuit claimed her employer violated the ADA for refusal to grant her a 14-day leave period as an accommodation. The employer filed a motion to dismiss, claiming COVID-19 was not a recognized disability. The court disagreed with the employer and noted the employee had alleged symptoms that substantially limited her ability to breathe, concentrate, and work, all major life activities. The outcome of the court’s ruling is that COVID-19 can be a “disability” under the ADA under certain, qualified circumstances depending on the severity and length of the employee’s symptoms. The EEOC and the courts that have ruled on the subject have all been consistent in reiterating that whether a diagnosis of COVID-19 is a recognized “disability” should be determined on a case-by-case analysis. In cases where the employee suffers mild, acute symptoms that do not limit the employee’s ability to work, the COVID-19 diagnosis will not be a recognized “disability.”
Employers should engage in the same interactive process with their employees to make a determination of whether a reasonable accommodation for COVID-19 illnesses should be granted. And, if so, are they entitled to FMLA leave?
Personal Protective Equipment (or Lack Thereof)
In Schleider v. GVDB Operations LLC6, the Eleventh Circuit considered the scope of legal protections created by the federal Public Readiness and Emergency Preparedness Act (PREP), which a Florida nursing home invoked in challenging a federal court’s remand of a lawsuit over a resident’s COVID-19 death. The PREP Act confers immunity on “covered persons” or entities who use “countermeasures” during the COVID federal emergency. The defendant, a nursing home, asked the court to reverse the district court’s ruling to send the case back to state court in which the plaintiffs claim the defendant failed to take proper protective measures against the spread of COVID-19. The defendant did not provide personal protective equipment (masks, gloves, etc.) (PPE) during the height of the pandemic. The plaintiffs claimed willful misconduct because of the failure of the defendant to provide PPE, which caused the death of their mother. The defendant urged the Eleventh Circuit to adopt a broad interpretation of the PREP Act, suggesting Congress intended for the law to preempt state court jurisdiction when an emergency is declared and also requires that a willful misconduct claim in these circumstances must be brought in the U.S. District Court for the District of Columbia. The plaintiffs insisted the PREP Act only covers the use of countermeasures and not the failure to provide countermeasures. The plaintiffs also argued that the PREP Act’s cause of action only applies to injuries caused by the use of countermeasures (personal protective equipment) and not those caused by COVID-19. The outcome and importance of this case cannot be stressed enough, as it is likely the Eleventh Circuit’s interpretation of the PREP Act in COVID cases will affect similar cases around the country. As of this writing, the Eleventh Circuit’s decision is still pending.
Vaccination mandates by healthcare facilities and other employers
In Bridges v. Houston Methodist Hospital7, over 100 nurses and healthcare workers filed a lawsuit against the defendant alleging it was unlawful for their employer to require the COVID-19 vaccine. The defendant allowed exemptions based upon medical conditions or religious beliefs. The district court ruled “Texas law only protects employees from being terminated for refusing to commit an illegal act carrying criminal penalties.” The judge noted that requiring a COVID-19 vaccination is not an “illegal act carrying criminal penalties.” Finally, the judge noted that the U.S. EEOC had issued guidance permitting employers to mandate vaccinations in the workplace, subject to valid medical or religious exemptions.
Of course, vaccination requirements imposed by healthcare facilities are nothing new, and exemptions for medical conditions or religious reasons have always been the mainstay. Indeed, this has been the law for a very long time. Constitutional law, the ADA, Title VII of the Civil Rights Act, and similar state laws prohibit workplace discrimination based on disability and religion and require employers to make reasonable accommodations so that all employees have an equal opportunity to perform the essential functions of their jobs.
However, before implementing a COVID-19 vaccination requirement, employers may want to determine whether the vaccination is essential for the health, safety, and welfare of their employees and patients/customers. Most certainly a substantial majority of health care facilities meet this requirement. If a determination is made to require the COVID-19 vaccination, ensure that your new policy provides the appropriate medical, disability and religious exemptions required under the existing law.
Employer Liability to Third Persons
In Estate of Madden v. Southwest Airlines Co.8, the U.S. District Court for the District of Maryland dismissed a lawsuit filed by a flight attendant who argued she contracted COVID-19 at work and then transmitted COVID-19 to her husband, who died from the virus. She sued the defendant for the wrongful death of her husband. The courts have so far not extended liability to third parties as a result of a COVID-19 related injury. This is a win for employers, but courts have always been hesitant to impose a duty and liability in similar circumstances not involving COVID-19. Employers should remain vigilant and enforce rigorous health and safety protocols to prevent COVID-19 in the workplace to minimize lawsuits filed by people that they do owe a duty—their employees and possibly clients or customers.
The guidance regarding COVID-19 has been evolving and will continue to do so. According to the statistical evidence, COVID-19 litigation will be around for at least the next five years, probably longer. Educating the stakeholders and employees at your organization on the new laws and guidance concerning negligence, the ADA, Workers’ Compensation, FMLA, and Risk Management Assessment involving COVID-19 related litigation and the long term effects on managing these issues should be a topic of discussion with your chief executive officer or corporate board.
2 Evolving Litigation Trends Revealed by Lex Machina’s 2022 Law Firms Report, ABA (Apr. 8, 2022).
5 Case No.: 3:21-CV-00590 (M.D. Ala. Feb. 22, 2022).
6 Case No. 21-11765 (11th Cir. Apr. 8, 2022).
7 No. 4:21-cv-01774 (S.D. Tex. June 12, 2021).
8 Case No. 1:21-cv-00672 (D. Md. 23, June 2021).