Law in a time of coronavirus

This has been a scary week, as we all scramble to stock our pantries, keep our families safe, and figure out what comes next. As everyone continues to grapple with the growing COVID-19 crisis, it is worth keeping an eye out for some of the legal issues that are likely to arise and shape the response along the way:

Pew Research: "Only a handful of states mandate paid sick leave"

Employees: Many people have already begun working from home, either at the encouragement of their employers or pursuant to remote-work HR policies. That is an important step to lessen transmission, but likely not the end of the story. Countless people have jobs that cannot be performed remotely or work for employers that do not offer paid sick leave. The availability of paid sick leave may be starting to change — at the federal, state, and company levels. In the meantime, employees may consider invoking other rights under the Family Medical Leave Act, the Americans with Disabilities Act and the Rehabilitation Act, applicable state statutes, and whistleblower statutes. For employees who are told to come into work in dangerous conditions or fired for working from home (or remaining on leave), there are potentially claims for wrongful termination and straight-up breach of contact. Anti-discrimination protections remain pertinent, for example in cases when more senior employees are suspended or terminated because of their age (as it relates to COVID-19 risks), or when Asian-American or Italian workers who face hostile work environments.

CDC slide on "keeping the workplace safe"

Startups and businesses: The Centers for Disease Control and Prevention (CDC)  released interim coronavirus guidance for businesses and employers, as has the Occupational Safety and Health Administration (OSHA). In addition to protecting the health of their employees and customers, a number of businesses in this pandemic may face significant economic problems, either directly health-related or as a byproduct of overall worsening market conditions. A range of commercial disputes will likely arise — for instance, stemming from closed stores or supply chain disruptions —  and some will hinge on questions of contract law involving force majeure, impossibility, frustration of purpose, and material adverse change clauses. Additionally, as a corollary to keeping workers and customers safe, companies may want to take a second look at premises liability and the scope of their insurance coverage. More generally, various forms of regulatory and tax relief may be available, for example through Small Business Administration loans, deferments from the Internal Revenue Service, and extensions at the Securities Exchange Commission.

Constitutional rights: Soon enough, the COVID-19 crisis will raise constitutional issues. In the last 24 hours alone, President Trump floated a travel ban upon the state of California and Mayor de Blasio had to quash rumors about a quarantine of Manhattan. Over the last week, the response has involved voluntary self-isolation, forced cancellations of certain events, quarantines, and a “containment area” around the entire town of New Rochelle, enforced by the National Guard. Quarantine, containment, and other public health measures are governed by a patchwork of federal and 50 state laws: each type of intervention involves its own legal authorities and limits. At the moment, many Americans would probably prefer more federal guidance and clarity and will, of course, comply with the instructions of public health and law enforcement officials. If the situation becomes more extreme, and more intensive measures are contemplated — like the use of guarded or physical barriers (called a “cordon sanitaire”) upon an entire city or state, enforced by threat of arrest or use of force — then the constitutional balance could start to change. There is already confusion about the scope of certain quarantines and it is not hard to imagine ethical and constitutional questions arising in cases of someone violating a quarantine trying to leave home to obtain life-saving treatment, or worse yet, getting shot attempting to cross a city line to get food. In a nutshell, there could eventually be substantial constitutional questions, e.g., under the Privileges and Immunities Clause (and freedom of movement), federalism and anti-commandeering concerns (when state and federal officials disagree), and perhaps even the Takings Clause (when the government seizes property in particular ways). In terms of commentary, look out for Georgetown Professor Lawrence Gostin, who has offered expert insights about forced quarantining and its constitutional implications.

Courts: In order for the law to be an effective remedy, whether for individuals or businesses, the courts to remain functional in some form. There have already been a handful of closures, including yesterday at the U.S. Supreme Court. Initial reporting suggests federal courts are each deciding how to respond, and the “orders range from detailed to vague and confusing.” For example, the Ninth Circuit is letting attorneys file motions to appear remotely and the Administrative Office of the U.S. Courts is drawing up other plans (and a template). Assuming that the COVID-19 pandemic becomes more widespread and persists for some time, federal courts should have a uniform system in place to allow for live-streaming of courtroom audio and remote appearances. By comparison, across the Atlantic, the United Kingdom recently announced a plan for virtual courts. Otherwise, indefinitely delaying trials and rulings could seriously impede access to justice.

All told, coronavirus presents an uncertain and frightening moment for the private and public sector alike. At the same time, this pandemic is not a free-for-all, either: during a crisis, a thorough understanding of the laws and rights available to you can be a crucial tool to save lives, mitigate damage, and promote recovery. Please do your best to stay healthy, flatten the curve, and consider not just your own safety but the health of everyone else. If you have any COVID-19 related legal questions, please do not hesitate to reach out.

[Last updated circa 11 AM, March 13, 2020.]