This 14th edition of Unprecedented, our weekly update on COVID-19-related litigation, showcases new and evolving trends. Employers are facing claims for both doing too much and too little in response to the COVID-19 pandemic. Shutdown litigation is increasingly focusing on alleged disparate treatment between businesses and protesters, as well as broadening to encompass challenges to mask requirements. Landlords have experienced a setback in early efforts challenging eviction moratoria, in addition to the adoption of a particularly tenant-friendly law in San Francisco. And a group of Illinois parents has filed one of the first lawsuits challenging the conditions under which public schools will reopen in the fall.
 
We hope you find these cases, and the questions they raise, to be informative.
 
 
Will employers be sued for doing both too much and too little to address COVID-19 risks?
 
When the COVID-19 outbreak threatened to overwhelm New York City, first responders from all over the country stepped up and temporarily transplanted themselves to the Big Apple to lend a hand. Contracting with FEMA to provide additional resources to the city under siege, Amblunz was one of many companies that sent EMTs and paramedics from other states into New York City. According to their website, Amblunz advertises itself as "a new kind of ambulance services provider that is transforming medical transportation through the use of disruptive technology, better compensation for EMTs and a unique business model that guarantees the highest level of care."
 
Contracting personnel were allegedly told they would be on-call 24/7, so they would be paid accordingly. The complaint alleges that Amblunz required personnel to remain in their hotel rooms at all times when not on active duty, mandated that they carry phones with GPS tracking with them at all times, posted security guards in the lobby of the hotel to ensure they did not leave, prohibited them from taking any transportation between work and their hotel other than provided shuttles, and barred them from consuming alcohol or engaging in sexual activities while in their hotel so as to remain "on-call" at all times. The class action complaint alleges that despite all these round-the-clock requirements and the promises apparently made before they traveled to New York City, Amblunz only paid personnel for their 12-hour shifts, and not for time at the hotel and not for the time it took to drive their ambulances to New York City. Amblunz's company representatives responded to the lawsuit filed in Brooklyn Civil Court with the statement that they are "completely confident in the rightness of [their] position, and believe this lawsuit is without merit." Click here for news coverage.
 
 
As mask mandates become more prevalent, will the lawsuits follow?
 
Four residents of Palm Beach County, Florida have sued the County alleging that its mask mandate violates the Florida Constitution. The complaint, which can be accessed here, seeks an injunction enjoining the County from enforcing the mask mandate, arguing that it violates residents’ rights to due process, freedom of speech, privacy, and equal protection. The lawsuit alleges the County lacked the authority to issue such a mandate and claims that “facial coverings not only do not ensure health, safety, or welfare, but rather can cause serious harm and even death.” In support of its claim alleging violations of the right to freedom of speech, the complaint alleges that the mandate “restrains verbal as well [as] non-verbal speech,” “discourages people from speaking or communicating with others due to difficulties such as [hearing], or . . . breathing,” and “recklessly discriminates against thousands of facial expressions.” As of July 6, Palm Beach County had a total of more than 17,000 confirmed cases of COVID-19.
 
A similar lawsuit filed in the U.S. District Court for the Southern District of California challenges the state’s mask requirement. The plaintiff in this case likewise takes aim at the assumptions underlying the mask requirements, arguing that masks provide at best negligible protection to healthy individuals. She argues that, in addition to state constitutional violations, the mask ordinance thus violates her constitutional rights to privacy, to move freely, and to make personal medical decisions. View the complaint here.
 
Variations of types of lawsuits may pop up around the country as local and state governments make decisions about whether and how to implement standards regarding facial coverings. As of July 3, more than 20 states had imposed mask requirements, though the specifics of each mandate vary significantly. News coverage can be found here.
 
 
Are voluntary efforts to mitigate COVID-19 having an effect on litigation?
 
An earlier Unprecedented reported that the Pennsylvania Department of Health had been sued for allegedly taking insufficient action to protect the Commonwealth’s long-term care residents. Now, that lawsuit has resolved, with the plaintiffs’ attorney stating the Department of Health’s implementation of testing protocols and public reporting has brought the Commonwealth into substantial compliance with their demands. This represents a positive development for all involved and, though unlikely to assuage business’s desires for statutory liability protections, suggests that voluntary measures can reduce litigation risk. News coverage can be found here.
 
 
Will how municipalities treat different segments of society impacted by disparity allegations?
 
American musician Kid Rock is feuding with the City of Nashville over restrictions it placed on “Kid Rock’s Big Ass Honky Tonk Rock N’ Roll Steakhouse” aimed at preventing the spread of COVID-19. Following Nashville’s reopening in June, the restaurant’s beer permit was suspended for violating Nashville’s COVID-19 restrictions. Since then, the restaurant has filed a lawsuit against Nashville claiming there is a “disparity” between the city’s treatment of the restaurant and protesters in recent demonstrations throughout the city. This is just one of the most recent lawsuits to draw this comparison since the protests over George Floyd’s death started in late May, and we expect this trend to continue as shutdown orders tighten. Click here for news coverage.
 
 
Are orders shutting down bars necessary or unfair targeting?
 
Kid Rock is not the only bar owner feeling singled out by orders shutting down bars to limit COVID-19’s spread. Allegheny County, Pennsylvania, the home of our Pittsburgh office, recently shut down all restaurants and bars for one week in response to a spike in COVID-19 cases.
 
And in Texas, a group of bar owners filed a lawsuit against Governor Abbott and other state officials over an order that shut down all bars and scaled back restaurant seating to 50 percent of capacity. Although pleaded under Texas law, the bar owners’ complaint raises many of the same arguments heard across the country: that the orders targeting bars usurp legislative power, are arbitrary and unequal, and threaten the livelihoods of already-struggling business owners. View news coverage here.
 
 
Will tourism continue to take a hit from the pandemic and litigation?
 
A class action lawsuit has been filed alleging that Austrian officials at the federal and regional level waited too long to employ COVID-19 restrictions in Ischgl, a mountain resort town located in Austria’s Tyrol region. Ischgl, with a population of around 1,500, hosts roughly 10,000 tourists a week who come to enjoy Ischgl’s alpine recreation offerings. A bar employee from Switzerland, labelled “Agent Zero,” is thought to have brought COVID-19 to Ischgl as early as February 5. The Medical University of Innsbruck conducted a study on Ischgl, and the results show that 42 percent of Ischgl residents have COVID-19 antibodies, indicating they had previously been infected. The study led researchers to believe that COVID-19 likely began spreading in Ischgl as soon as the middle of February. The class is demanding financial compensation from the Austrian government for failing to employ COVID-19-related restrictions sooner. The attorney representing the class stated that, on March 3, officials became aware that tourists from Iceland tested positive after skiing at Ischgl. While regional officials did implement a lockdown on March 13, the class believes officials should have acted sooner. For news coverage, click here.
 
 
Will the fight over evictions lead to more lawsuits?
 
New York and San Francisco—two heavily populated areas with notoriously high costs of living— recently have enacted ordinances banning tenant eviction due to pandemic-related difficulties. In New York, Governor Cuomo issued a series of orders placing a temporary moratorium on evictions through August 19, 2020, citing the COVID-19 pandemic as justification. Although the Governor’s orders permitted landlords to eventually evict or sue tenants for unpaid rent, several landlords filed suit to overturn the action as unconstitutional, claiming that the moratorium would cause the industry to “foot the bill” of the pandemic, without adequate redress. These legal challenges suffered an early blow at the hands of a federal district court judge, who ruled that the eviction ban was limited enough to retain constitutionality. In particular, the judge noted that while the orders were extremely tenant friendly, their effect was time-limited and landlords would ultimately be allowed to pursue full compensation for unpaid rent.
 
San Francisco has enacted a similar ordinance, although with a key distinction that will need to survive judicial scrutiny. Like New York, San Francisco enacted an ordinance banning the eviction of tenants who are experiencing pandemic-related financial hardships. Unlike the New York orders, however, San Francisco’s eviction ban is permanent. Although landlords would still be permitted to pursue unpaid rent as a consumer debt, landlords would be prohibited from seeking the eviction of tenants who failed to pay because of COVID-19, even after the pandemic has lifted. The San Francisco Board of Supervisors explained that they believe a permanent ban is necessary to prevent a flurry of evictions following the pandemic. San Francisco landlords and realtor groups disagreed and filed a lawsuit alleging, among other things, that the San Francisco ordinance causes the unconstitutional taking of private property, unlawful interference with private contracts, and goes beyond the scope of the California Governor’s executive order that authorized local governments to temporarily ban evictions. Given that the similar New York eviction ban was upheld in part because it was not permanent, industry groups should be interested in seeing whether California courts will take a more liberal stance and uphold San Francisco’s permanent ban. Click here and here for news coverage.
 
 
Will litigation impact how public education takes place this fall?
 
As the fall approaches, families across the nation are still unsure if public schools will open in August, and, if they do, how they will minimize risk of COVID-19 exposure for children. In Illinois, Governor JB Pritzker has announced public schools will reopen under guidelines set by his office, in conjunction with the Illinois Department of Public Health and the Illinois State Board of Education. These guidelines include using personal protective equipment (including free face coverings for all teachers, staff, and students in the state), conducting symptom and temperature checks, prohibiting gatherings of more than 50 people, social distancing, and increasing cleaning and disinfection. Individual districts retain the ability to create their own safety plans, but must adhere to the statewide guidelines. The decision, like most of Governor Pritzker's COVID-19 orders, is being met with litigation. At least one set of parents, whose children would attend Illinois public schools in the fall, have sued the Governor, the Department of Public Health and the Board of Education challenging the constitutionality of these precautions. Pritzker declared a state emergency under the Illinois Emergency Management Agency Act, granting him certain "extraordinary powers." His use of these powers has faced significant scrutiny and litigation, particularly from the Democratic Governor's Republican constituents. The parents in this lawsuit add to that scrutiny, arguing the Illinois Supreme Court precedent has limited Pritzker's powers and found face masks, and other health regulations intended to try and prevent the spread of COVID-19, are not allowable under the law. The Governor's office maintains it has sufficient powers to enact these guidelines, which are limited to those proven to reduce the spread of the disease. Though this lawsuit is made in the context of public school, it can have much broader implications regarding the scope of gubernatorial powers as COVID-19 continues. Additionally, similar lawsuits are likely to pop up nationwide, as state school systems implement a variety of schedules, precautions, and guidelines for the upcoming semesters. News coverage can be found here.
 
 
Questions?
 
Spilman’s COVID-19 Task Force is monitoring litigation arising out of this pandemic to help keep our clients informed and in front of liability issues. Contact us with any questions or requests for tracking particular types of litigation arising out of the COVID-19 pandemic.