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According to Bloomberg Law, “broad liability protections that shield most or all businesses [from COVID-19 liability are in] roughly half of all states now.”
So let’s say that one of your employees is immunocompromised with an underlying disability, and she seeks an accommodation to mitigate the risk of her increased vulnerability to COVID-19. If the employers fail to accommodate, do “broad liability protections” under state law also foreclose COVID-19-related claims arising under the Americans with Disabilities or equivalent state disability-discrimination law?
This situation recently arose in Tennessee, which has one of these COVID-19 business liability shields.
Its law protects any employer from liability for loss, damage, injury, or death that arises from COVID-19 unless the claimant proves by clear and convincing evidence that the employer caused the injury by an act or omission constituting gross negligence or willful misconduct.
If that sounds like a steep burden, well, it is. Getting past that liability shield is hard — like Ben Simmons hitting ten consecutive playoff free throws hard.
(Yeah, I went there.)
Even filing the complaint is a real pain in the you-know-what.
A claimant in any action alleging injury arising from COVID-19 must file a verified complaint pleading specific facts with particularity from which a trier could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct. Plus, in any action alleging injury based on exposure to or contraction of COVID-19, the claimant must file a certificate of good faith stating that the claimant or claimant’s counsel has obtained a signed, written expert medical opinion that the claimant’s injury was caused by the alleged act or omission of the defendant.
If a claimant messes any of this up, the court will dismiss the complaint with extreme prejudice prejudice.
And that’s exactly what an employer recently asked the court to do in this recent ADA action, in which the plaintiff alleged that she was discriminated against because of her asthma and increased risk of serious illness from COVID-19 and that the defendant fired her rather than accommodate her by limiting her risk of exposure.
The defendant claimed that the plaintiff was subject to the rigid liability shield requirements. She alleged that the defendant caused her a loss or damages based upon her exposure or potential exposure to COVID-19.
Creative lawyering, yes. Successful, no.
Defendant’s reading of the Act is too broad….While [plaintiff’s] request for accommodation relates to her increased vulnerability to COVID-19, her claims do not “arise from COVID-19” for the purposes of the Act. The expansive reading of the Act for which Defendant advocates would deprive federal courts of their ability to hear federal claims based on state-legislated procedural hurdles. This reading violates the most basic principles of federalism and would lead to inconsistent application of federal law and inconsistent access to federal courts based on the forum state’s policies concerning state-law claims.
If your business thinks that some state COVID-19 shield law will allow it to discriminate against individuals with disabilities, as the kids say, “Mess around and find out.”