Legal Issues Raised by the COVID-19 Pandemic
As the coronavirus disease of 2019 (COVID-19) sweeps through the United States and world, public- and private-sector organizations are forced to take unprecedented steps to stem the pandemic. This raises legal questions that will likely play out in courts for years to come.
This article provides a roundup of some of the legal issues spurred by COVID-19. It covers:
The legal side of quarantine and stay-at-home orders
Criminal law
Civil procedure
Family law
Employment law
Insurance
The Legal Side of Quarantine and Stay-at-Home Orders
The rights to assemble, associate, practice one’s religion, and travel are protected by the Constitution. However, state and local governments have broad powers to limit those rights to protect public health and safety during an emergency. They can impose quarantines and curfews, close public spaces, ban public gatherings, and restrict traffic.
Sheriff Chad Chronister in Hillsborough County, Florida, issued an arrest warrant for a Tampa pastor who continued to hold church services despite the county’s “safer at home” order. Many nonessential businesses have been ordered to shut down, raising the question of what types of businesses meet that definition.
The Department of Homeland Security has issued guidelines, but state and local governments are responsible for implementing their own rules. The National Rifle Association sued the State of New York over its closure of gun stores, arguing that “the current public health emergency does not justify impeding the exercise of Second Amendment rights” to purchase firearms and ammunition.
COVID-19’s Impact on Criminal Law
Criminal matters are being delayed due to court closures, creating conflicts with a defendant’s right to a speedy trial under the Sixth Amendment and state statutes. Some states have little latitude to deviate from those requirements. In Colorado, for example, criminal trials must be held within six months unless the defendant waives that right.
The Speedy Trial Act, 18 U.S.C. § 3161, sets specific deadlines for federal criminal trials. The Ninth Circuit Court of Appeals has suspended these requirements for one year in California’s San Diego and Imperial Counties. The Southern District of California was already overwhelmed with cases involving immigration, U.S. Customs offenses, and drug trafficking.
The Justice Department requested broad powers to hold defendants indefinitely without trial and to suspend the statute of limitations for criminal procedures during national emergencies and for one year afterward. It’s unlikely that this proposed legislation will pass in the Democrat-led House of Representatives.
The Spread of COVID-19 in Prisons and Jails
The spread of COVID-19 in prisons and jails is another significant cause for concern, spurring the release of nonviolent offenders in many jurisdictions. The New York Civil Liberties Union and Legal Aid Society filed a proposed class-action lawsuit demanding the release of more than 1,000 people who are indefinitely detained in New York City jails for alleged parole violations.
However, there’s also concern that releasing prisoners will spread the virus into communities and further strain the health care system. In addition to reducing prison populations, corrections departments are looking to increase hygiene efforts and utilize alternative housing.
COVID-19 and Civil Procedure
As the pandemic disrupts federal and state courts, civil litigants are understandably concerned about statutes of limitation and other legal and procedural time limits. Some state courts have issued emergency orders tolling statutes of limitations and other deadlines for a specified time period. Others are addressing the issue on a case-by-case basis.
Some district courts have tolled federal statutes of limitation, while others have specifically declined to do so. Federal courts adjudicating state law claims would follow extensions granted by that state.
Some parties are also requesting courts to extend deadlines for discovery, status conferences, and trial dates. For example, pharmacies are seeking extension of discovery deadlines in opioid cases set for trial this fall. Most courts are extending deadlines, even over opposing party objections, but some are requiring parties to move forward with depositions and other discovery matters if possible.
COVID-19 and Family Law
In many jurisdictions, family courts have shut down completely or are only hearing the most pressing matters, such as protective orders, emergency juvenile matters, and mental health commitments. Some family courts are conducting hearings via phone and video conferencing, but others have postponed hearings indefinitely.
Stay-at-home orders have raised questions regarding child custody agreements. In some jurisdictions, the exchange of children pursuant to child custody agreements is exempt from stay-at-home orders, while in others “essential travel” includes travel pursuant to court orders, such as those related to child custody. However, some parents may refuse to exchange their children out of concern for their welfare. It’s unclear how such decisions will play out in court.
COVID-19 and Employment Law
Employers must ensure that their efforts to combat the COVID-19 pandemic don’t run afoul of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. The ADA prohibits employers from requiring medical examinations or asking medical questions, although there are exceptions for employees who pose a threat to the health and safety of others.
The Equal Employment Opportunity Commission (EEOC) issued guidance indicating that employers can screen new hires for the coronavirus, send home employees who have symptoms, take employees’ temperatures, and report confirmed cases to health officials. However, the guidance does not insulate employers from ADA lawsuits.
Companies that lay off workers due to the pandemic-related economic slowdown may be required to comply with the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. § 2101, et seq. Most employers with 100 or more full-time employees must notify workers 60 days in advance of plant closings and mass layoffs involving 50 or more employees or 33% or more of the workforce. However, there’s a circuit split as to whether a temporary layoff triggers the notification requirement.
COVID-19’s Effect on the Insurance Industry
As businesses face mounting losses due to forced closures, many are filing business interruption claims under their property insurance policies. Generally, however, the claims have been denied. Some policies include specific exclusions for pandemics. In other cases, insurers are denying coverage because pandemic-related closures don’t involve actual property damage.
Policy provisions for business disruption due to the actions of civil authorities could provide a potential avenue for coverage. Add-on policies covering virus outbreaks have become available in recent years, but insurers say these policies are designed for infections within the covered business—not a global pandemic.
The COVID-19 crisis has led to huge interest in PandemicRX, a unique policy introduced in May 2018 that covers pandemic-related business disruption. Naturally, coverage for COVID-19 is excluded in policies purchased today. However, given the predicted increase in global pandemics, it may be wise of companies to purchase a policy for future coverage.
Learn More About Current Legal Issues
The coronavirus has impacted many aspects of law, business, and people’s daily lives. How will some of these legal issues play out in court? It’s too soon to say, but eventually—probably over multiple years—time will tell.
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