As California and other states reopen, more lawsuits that include COVID-related claims are being filed as people return to work, with more being brought against small businesses and health care providers, raising questions about how much litigation to expect.
The most recent data from the Fisher-Phillips COVID litigation tracker notes that California has seen more COVID claims than other states, which could be due to its sheer size or signal an emerging trend of plaintiffs’ lawyers adding COVID claims to lawsuits with other workplace allegations.
In any case, employers are looking at what they can do in the event of legal action, Richard Marcus, distinguished professor of law and Horace O. Coil Chair in Litigation at UC Hastings Law, told the Northern California Record.
“They have a whole range of things that might come up which they are learning about because they'd rather, if they can, do something fairly simple to avoid getting into big trouble instead of having to do things afterward without having thought about them in advance,” Marcus said.
He noted that while COVID-19 is a new phenomenon, the legal issues raised are analogous to other diseases or products.
The American Tort Reform Association released a report earlier this year on litigation response to the COVID-19 pandemic.
Similar to what happened with ADA lawsuits, there could be a comparable pattern with some COVID claims, Marcus said.
“There have been a number of stories about folks who go around from one small retail establishment to another and observe what they say are failures to adhere to accessibility requirements and start filing lawsuits. There are lawyers who have filed many, many of these lawsuits against mom and pop-type operations and settle them for say $5,000, saying it’s cheaper for you to pay me off than to go to court,” Marcus said. “It could be there would be somebody out there trying that kind of thing with COVID-related lawsuits.”
Marcus noted that from a lawyer’s perspective, it comes down to whether there will be success in legal action. If it’s someone who comes to a lawyer and says I’m really upset because my employer says I have to be vaccinated, those would be harder for plaintiffs to win without a legitimate religious or medical accommodation reason.
In terms of winning a lawsuit that alleges a business failed to exercise proper COVID-19 precautions, the problem becomes what negligence standard applies, Marcus said.
“Proving causation would probably be really difficult,” Marcus said. “How does a person prove that going to that store is what caused them to get sick.”
A recent Washington Post commentary describes the trial lawyer lobby at the state and national level. Roughly 25 states have passed liability protections for businesses and health care providers during the COVID-19 pandemic; California has not.
Marcus noted California would be one of the few states where liability protections would have little or no chance.
Among other potential COVID-related claims: unlawful retaliation against employees who complain about failure to provide masks or other workplace safety measures.
COVID claims aren’t likely to be handled in a sweeping multidistrict litigation (MDL) settlement, nor are they likely to appear decades after the fact, said Marcus, who is also the lead author of Complex Litigation: Cases and Materials on Advanced Civil Procedure, going into its 7th edition.
Marcus said class actions also seem less likely.
“It sounds to me like most of these situations are very individualized,” Marcus said.
Still, avoiding conflict and winning the support and understanding of employees could be the best way to avoid lawsuits, Marcus said. “Good employee relations sound to me like the way to go,” he said.