On Wednesday, July 14, WMU-Cooley’s Health Law Society hosted a discussion on legal issues surrounding COVID-19. Lisa Nagele-Piazza, senior legal counsel with Society for Human Resource Management (SHRM) Online; Susan Wiltsie, partner with Hunton Andrews Kurth; Peter Jacobson, professor of health law and policy with the University of Michigan School of Public Health; and Linda Moroney, partner with Manatt, Phelps & Phillips , LLP addressed questions including what types of litigation can be expected due to COVID-19.
Jacobson said that public health policy will be one of the most litigated issues that will come from the pandemic. “What we’ve seen so far has been a focus on the emergency declarations,” he said. “The longer term concern is the challenge to the ability for state and local health departments to implement and execute orders protecting the public health, particularly if there is a resurgence of the virus, or in the future, new viruses.”
Nagele-Piazza spoke about how COVID-19 brought to light issues surrounding workplace compliance pertaining to health issues. She explained how moving from the workplace to home created new challenges very quickly within the nation’s workforce.
“A lot of people who are considered non-exempt employees started working from home. The employers as well as the employees might not have been ready for that change,” said Nagele-Piazza. “I think we will continue to see wage and hour issues concerning whether employees were paid properly while working from home, were all of their hours captured, and other rules, such as an exempt employees performing the duties of non-exempt employees. There has been some leniency because of the state of emergency, but I think we will begin to see these issues being litigated.”
Whether employers or schools can require vaccines for individuals to return was discussed, with Wiltsie saying that we are in the first wave of these cases involving mandatory vaccinations.
Wiltsie also said that all the vaccines currently in use are authorized through an emergency use order. “The cases we have seen so far and the attorney demand letters I see are based on a provision that says vaccination is voluntary in an emergency use situation, but it doesn’t follow the next logical leap of these litigants, which is that it somehow has a bearing on employment. Certainly you can choose not to be vaccinated, which regrettably people have, but that doesn’t protect the individual from the consequences. Meaning if their employer mandates the vaccination and they do not have an ADA or religious carve-out that would give them the legal right to decline, they need to get vaccinated or find another place to work.”
Moroney spoke about issues where states have made it illegal to require vaccinations as a condition of employment. She said, “The state of Montana enacted legislation that actually forbids – it’s an absolute prohibition – on vaccines as a requirement for employment. Obviously this puts hospitals, schools, and other organizations in a very difficult position. Many are in the mode right now of saying ‘well, be careful what you ask for because we are going to substantially change the way we deliver services, not just in the healthcare setting, but in other environments as well if we can’t ensure the safety of our patients, our visitors, and our workers.’”
The full presentation can be viewed at WMU-Cooley’s YouTube channel.