By Gerald L. Maatman, Jr. and Jennifer A. Riley

Seyfarth Synopsis:  As employers embark on reopening their businesses and implementing return to work plans, they face a potential wave of workplace class action litigation.  Such lawsuits have begun to roll in and courts have started to weave a patch-work quilt of responses.  Early results show trends beginning to emerge and lessons for employers embroiled in these actions.  In this blog post, we outline items that businesses need to have in their defense arsenals as they start responding to and defending post-COVID-19 class actions. A sound class action survival guide is a business imperative

  1. A Good Sense Of Common Sense:

The COVID-19 pandemic has provided some welcome direction from courts and clarity to litigants to focus on things that matter.  Over the past few months, numerous courts have suggested that litigants should act with a greater sense of awareness and many judges have exhibited a lower tolerance for frivolity and thoughtlessness.  This sense of the bigger picture has come through in not-so-subtle terms in the tenor and substance of many recent rulings.

In one illustrative example, a district judge in Chicago famously rejected a motion for reconsideration of a ruling continuing a TRO hearing noting that, even if the plaintiff were successful in securing an order that directed a slew of third-parties to spring into action to prevent the proliferation of “infringing unicorn” and “knock off elf” images, the order either would be ignored or would distract people who may have “bigger problems” on their hands.  Art Ask Agency v. Individuals, Corporations, Limited Liability Cos., No. 1:20-CV-01666 (N.D. Ill. March 18, 2020).  Similar examples abound from courts throughout the country.

Even as schedules and deadlines ease back into rigidity, employers in class actions are well-served by picking their battles and, when it comes to presenting issues to the court, refining their approach to account for the bigger picture, so as to avoid an inflated sense of urgency, and to jettison needless bickering.

  1. A Solid Understanding Of Class Certification Standards

As the tide of lawsuits alleging personal injury and wrongful death have started to roll in, some employers remain paralyzed by fear that an exposure on their premises could prove crippling to their survival.  Further frustrating any sense of security, courts have begun issuing inconsistent rulings on whether exposure claims are appropriate for class treatment.

In one of the first rulings, on April 10, 2020, a court in the Northern District of Illinois declined to certify a class of state inmates concerned about their risk of COVID-19 infection because it found that each putative class member came with a unique situation and the imperative of individualized determinations rendered the case inappropriate for class treatment.  Money v. Pritzker, No. 1:20-CV-02093 (N.D. Ill. April 10, 2020).

On June 6, 2020, a court in the Southern District of Florida reached a different result.  Focusing on the threat of a heightened risk of severe illness, despite the need for individualized assessment of each detainee’s vulnerabilities to COVID-19, it found the commonality required by Rule 23 because plaintiffs alleged common conduct, including failure to implement adequate precautionary measures and protocols, lack of access to hygiene products, and lack of social distancing.  Gayle v. Meade, No. 20-Civ-21553 (S.D. Fla. June 6, 2020).

Employers defending class cases should come prepared with a solid understanding of certification standards to navigate this growing patchwork of rulings.

  1. An Understanding Of The Various Laws That Shield Employers From Liability

Although Congress has not yet passed any COVID-19 liability shield on the federal level, a growing number of states have taken steps to immunize businesses from lawsuits by employees or customers who contract COVID-19.

A slew of bills await review that would shield businesses in certain states from coronavirus-related lawsuits, including one that would shield Louisiana restaurants from civil liability related to COVID-19, and others that would broadly block employees from bringing complaints in court and limit remedies for on-the-job infections to those available through the workers’ compensation system.

Whereas states such as North Carolina, Oklahoma, Utah, and Wyoming have enacted broad liability protections for businesses related to COVID-19, additional states such as Arizona and Michigan have adopted more limited protections specific to health-care providers.  These laws create a patchwork of protection, with varying scope and conditions, that companies facing broad scale class actions should understand and come prepared to invoke.

  1. A Sense Of Creativity Relative To Applicable Legal Standards

One example of creative thinking on the part of the plaintiffs’ bar lies in the workplace safety arena.  The Occupational Safety & Health Act (“OSHA”) requires that employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  In the context of COVID-19, OSHA has advised employers to follow guidelines from the CDC, such as sanitizing surfaces and ensuring social distancing.

Whereas federal administrative guidance does not generally give rise to a private cause of action, members of the plaintiffs’ bar have attempted to shoehorn failures to comply into claims for public nuisance as well as claims for breach of duty to protect the health and safety of employees.  Lawsuits have started to roll in from employees who allege that they were “encouraged” to continue attending work and prevented from adequately washing hands or sanitizing workstations.  Employees allege that masks created a “facade of compliance” that fell short of the measures that actually would have provided protection.

Courts have started to weave a patchwork quilt of rulings as to whether those alleging “failure to protect” can state a viable claim, particularly if they did not contract the disease.  In connection with Hurricane Harvey, for example, the U.S. Court of Appeals for the Eleventh Circuit ruled that a plaintiff could not state a claim by citing a laundry list of every possible injury imaginable without any factual allegations that he suffered any harm.  Motions to dismiss COVID-19 claims on similar grounds remain pending.  See, e.g., Chao v. Princess Cruise Lines, Ltd., No. 2:20-CV-03314 (C.D. Cal. June 2, 2020).

Court have disagreed over whether they should weigh in on such claims.  A federal court in Missouri, for instance, granted a motion to dismiss claims that an employer failed to protect employees at a meat processing plant, declining to hear the case pursuant to the primary jurisdiction doctrine to allow the OSHA to consider the issues.  Rural Community Workers Alliance v. Smithfield Foods, Inc., No. 5:20-CV-06063 (W.D. Mo. May 5, 2020).  An Illinois state court, however, recently refused to toss accusations by a proposed class of Chicago employees that their employer failed to do enough to protect them during the ongoing pandemic.  Massey v. McDonald’s Corp., 2020-CH-04247 (Cir. Ct. Cook County June 3, 2020).

To effectively defend these new theories, businesses should be prepared to think outside the box and mount a multi-faceted attack, including challenges on the pleadings, challenges to class certification, as well as a series of defenses on the merits.

  1. Thoughtful Policies And Documented Efforts To Comply

As legislators grapple with whether and on what terms to extend COVID-19 liability protections to employers, and plaintiffs grapple with turning non-compliance into legal theories, employers should be prepared to address the guidelines, their safety efforts, and their workplace policies.  Employers can create a positive defense posture by being prepared to demonstrate that they adopted and enforced reasonable and appropriate workplace policies and reporting mechanisms.  In addition to considering the risks and developing a plan, employers should be prepared with documentation that will enable them to rebut allegations of any widespread shortfall.

In sum, as members of the plaintiffs’ bar continue to pivot their theories to meet the next phase of the COVID-19 pandemic, and courts continue to issue rulings on their various claims, employers should be prepared to meet these new challenges with advance preparation and multi-faceted defense strategies.