The year 2020 upended nearly every aspect of society and affected our personal and professional lives due to the novel coronavirus (“COVID-19”). No business industry was immune to COVID-19’s impact as a significant number of businesses moved employees to remote work, furloughed employees, or laid off employees entirely. As the job market recovers and strategies to combat COVID-19 develop, including testing and vaccines, employers are transitioning employees back to commercial office spaces. In doing so, however, each employer must consider the effect COVID-19 may have on in-person work and must realize that it may need to accommodate various employees due to legitimate health or religious concerns associated with COVID-19 or the vaccines associated with the virus.


Generally, at-risk individuals for COVID-19 are classified by the Center for Disease Control as individuals with immunocompromised diseases or conditions such as diabetes, high-blood pressure, obesity, cystic fibrosis, and liver disease. “At-risk” individuals also include those with a high risk mental condition, such as depression and anxiety brought on by COVID-19. Though the Equal Employment Opportunity Commission (“EEOC”), one of the leading federal workplace discrimination enforcement agencies, has not commented on whether contracting COVID-19 qualifies as a “disability,” various state and local laws broadly construe what is defined as a “disability” which would likely include COVID-19.[1] As such, an individual at high risk for COVID-19, or someone who has already contracted COVID-19, could qualify as disabled and require reasonable accommodations if an employer requires the individual to return to work.

Under 42 U.S.C. § 12102(1)(A) (Equal Opportunity for Individuals with Disabilities), federal law provides that an individual is entitled to a reasonable accommodation at his or her place of employment if he or she has a “disability” defined as a physical or mental impairment that “substantially limits” a major life activity and that impairment is not transitory or minor. Though COVID-19 is not specifically referenced in section 12102, an employer must likely make a good-faith effort to “reasonably accommodate” the impacted employee under section 12102’s broad “disability” definition. To the extent that individuals who are at high risk for COVID-19 or who have contracted COVID-19 and are entitled to reasonable accommodations, examples of these accommodations may include telework, modified work schedules, job restructuring, and greater accessibility to work facilities (i.e. spaced out work spaces). 42 U.S.C. § 12111 (9); 19 C.F.R. § 1630.2(0)(2). Although teleworking became the norm due to the pandemic, it is not currently a required reasonable accommodation by the EEOC. However, this is likely to change as multiple states have confronted civil suits by terminated employees who opted for remote work due to health concerns associated with contracting COVID-19. EEOC v. Gentiva Health Services, Inc., No. 1:20-cv-03936 (N.D. Ga. Sept. 22, 2020); Peeples v. Clinical Support Options, 2020 U.S. Dist. LEXIS 169167 (D. Mass. Sept. 16, 2020). If an employer reasonably accommodates its employees affected by COVID-19 by allowing them to work remotely, an employer should also protect
Continue Reading Employer Considerations When Employees Return to In-Person Work: ADA Accommodations in the Post-COVID 19 Workplace

As the COVID-19 pandemic continues to sweep across the United States and the world, it affects every industry and sector of business, including the cruise ship industry. Earlier this year, television and print media were littered with stories and videos of cruise ships quarantined at sea with passengers and crew unable to dock at port and return home. As the full scope of the pandemic came into view, the cruise ship industry, including Carnival and Royal Caribbean, were forced to cancel upcoming voyages under guidelines promulgated by the Center for Disease Control (CDC) including its “No Sail Order for Cruise Ships.” See

On top of that, there have been reports that more than 1,500 people were diagnosed with COVID-19 following cruises, and allegedly 39 people have died from COVID-19 following their trips on cruises run by Carnival Corporation and its subsidiaries. Numerous lawsuits were filed on behalf of injured plaintiffs against cruise lines throughout the United States. For example, two different classes of cruise passengers filed lawsuits against Carnival Corporation.
Continue Reading Effects of COVID-19 on the Cruise Ship Industry and Legal Ramifications on Other Sectors

Approximately three months into the unprecedented pandemic that drastically altered the way of life worldwide, states cautiously began lifting stay-at-home orders. California, one of the states hit hardest by the COVID-19 pandemic, was among these states. The gradual reopening of California’s economy was cut short as a spike in COVID-19 cases in early July 2020 resulted in Governor Gavin Newsom ordering that certain businesses with indoor operations, such as restaurants and movie theaters, cease indoor operations “which promote the mixing of populations beyond households and make adherence to physical distancing and wearing face coverings difficult.[i]” Indeed, the risk of contracting the virus is undoubtedly at the forefront of the minds of both employers and employees as they return to their places of employment. This article explores some of the issues posed by COVID-19 in the context of recent changes to California’s workers’ compensation laws and the impact of these changes on employers, as well as issues concerning employers’ potential exposure to litigation for COVID-19 related claims.

1. A Brief Overview of the California Workers’ Compensation Act

California’s workers’ compensation laws are codified in Labor Code §§ 3200-6200, referred to as the Workers’ Compensation Act. The primary purpose of California’s workers’ compensation statutes is to insure that an injured employee and his or her dependents have adequate means of sustenance while the employee is unable to work[ii]. The laws also promote the employee’s prompt recovery so that he or she can return to the workforce[iii]. Accordingly, the burden of caring for the injured worker and his or her dependents is shifted from society to industry, which assumes the responsibility as a cost of doing business[iv]. The provisions of the Workers’ Compensation Act must be liberally construed in the employee’s favor, and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of awarding the injured employee compensation[v].

In order to be eligible for workers’ compensation benefits under California law, two conditions must be present: (1) an employer-employee relationship[vi] and (2) an injury suffered by an employee that arises out of and in the course of the employment relationship[vii].

California defines an employee as every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed[viii]. Any person rendering service for another is presumed to be an employee[ix]. Independent contractors, defined as any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished[x], are specifically exempted from this presumption[xi].

For an injury to arise out of the employment, it must occur by reason of a condition incident to the employment[xii]. That is, the employment and the injury
Continue Reading Legal Issues Posed by Sweeping Changes to the California Workers’ Compensation Act by Executive Order N-62-20: A Primer for Employers

As of July 20, 2020, the Centers for Disease Control and Prevention reported more than 3.7 million COVID-19 cases, resulting in more than 140,000 deaths.  The virus is primarily transmitted person-to-person by droplets, aerosols and fomites. Nursing homes, rehabilitation and long-term care centers and facilities caring for people with psychiatric disabilities assist persons of a wide range of ages, but the majority of residents are elderly. Individuals that require the services of these facilities are particularly vulnerable to respiratory pathogens such as the influenza virus and present environments conducive to infections which can be introduced into these facilities by staff, visitors and new residents with devastating consequences.

Nursing home residents account for nearly one in ten of all COVID-19 cases in the United States and more than a quarter of the deaths.[1]  Data shows that nursing homes have been overwhelmed by the effects of the virus. Nursing homes hold large populations of elderly residents many of whom have compromised immune systems due to pre-exiting medical conditions and age. Given the typical living arrangements which place patients and residents within close proximity to one another and caregivers supporting numerous individuals in the same facility, nursing homes and long-term care facilities present substantial opportunities for the spreading of infections. Nursing homes frequently provide a community-based atmosphere, consisting of “family” meals, entertainment, fitness classes, group activities such as card or board games, and a general encouragement of social interaction.

Within high-risk groups of our population, these environments and related activities offer the perfect opportunity for a virus such as COVID-19 to spread if proper precautions, including social distancing and enhanced hygiene protocols, are not established, initiated and followed. The CDC has set out specific guidance and recommendations for Nursing Homes & Long-Term Care Facilities to address potential COVID-19 exposures.[2]  Failure to follow a prevention and control program in these settings can result in illness, death and litigation.  Oversights in the prevention and control of COVID-19 ultimately leads to potential legal exposure for nursing homes, long-term care facilities, individual healthcare providers, service providers and contractors that provide dining or cleaning services, as well as the individual employees themselves at a higher risk for becoming the target of litigation.

An example of the potential scope of legal liability faced by nursing homes and similar facilities as a result of the pandemic can be seen in a proposed class action filed in the United States District in Massachusetts pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983.  Sniadach, et. al. v. Walsh, et. al., stems from COVID-19 infections and deaths afflicting 160 Veterans that resided at the Soldiers’ Home in Holyoke, Massachusetts resulting in the deaths of 76 Veterans.  The proposed class action alleges that the Soldiers’ Home, its management and staff failed to follow proper COVID-19 procedures.

The Holyoke facility was investigated and a report entitled “An Independent Investigation Conducted for the Governor of Massachusetts” was published on June 23, 2020 which examines the causes of the outbreak.[3]  The report
Continue Reading COVID-19’s Impact on America’s At-Risk Population: Risk & Legal Exposure – Liability & Immunity

As phased reopening plans are initiated across the country, many business owners are fearful that reopening may bring with it the possibility of significant liability exposure for COVID-19 related lawsuits. Businesses already feeling the impact of a national economic crisis could face an even more devastating financial impact absent some type of protection. It is inevitable that members of the public will continue to contract COVID-19, despite the precautionary measures in place and those contemplated by businesses that have yet to open. Many argue that in order to seriously consider reopening, businesses must be afforded some legal certainty that they will not face a flood of lawsuits from individuals that contract the virus. While it may be difficult for a plaintiff to ultimately prove that they contracted COVID-19 from a particular business, rather than from some other source, the costs associated with defending such lawsuits could place some businesses in financial jeopardy. In an effort to address these concerns and provide businesses with the confidence to reopen, a growing number of states have considered legislation aimed to immunize companies in various sectors from liability for potential lawsuits by individuals that contract COVID-19.

In the early stages of the pandemic, many states granted immunity to health care providers through legislation or executive order. More recently, states have both considered and enacted legislation that extends immunity to a much broader scope of businesses and other entities. For instance, North Carolina has enacted legislation offering limited immunity from civil liability for essential businesses in the state with respect to claims by customers and employees for injuries or death alleged to have been caused as a result of contracting COVID-19.[1] Emergency response entities are also afforded this immunity in North Carolina. There are, however, limitations to the immunity provided. There is no immunity if the injuries or death were caused by an act or omission of the essential business or emergency response entity that constituted gross negligence, reckless misconduct, or intentional infliction of harm.

Oklahoma offers even broader protection, as its recent legislation affords anyone who conducts business in the state immunity from liability in any civil action involving allegations of exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in compliance or consistent with federal or state regulations, executive orders, or guidance applicable at the time of the alleged exposure.[2] If two or more sources of guidance are applicable to the conduct or risk at the time of the alleged exposure, the person or business will not be liable if the conduct was consistent with any applicable guidance.

Similarly, Wyoming has passed legislation that provides immunity from liability for any health care provider or other person, including a business entity, who in good faith follows the instructions of a state, city, town, or county health officer or who acts in good faith in responding to the public health emergency.[3] Immunity does not, however, apply to acts or omissions that constitute
Continue Reading State Legislation to Immunize Businesses from Liability for Contraction of COVID-19