Lockdown lawsuits likely to live on, lawyers say

Though California's governor ended many pandemic restrictions this week, attorneys say COVID-related lawsuits will continue for years.

These cases can be divided between those concerned with past harms and those focused on preventing future restrictions. The past harm category has included workers and prison inmates who have sued over COVID exposure, as well as employees who claim they were laid off without proper notice during ordered business shutdowns. Cases focused on the future could seek to void vaccine requirements or limit future pandemic shutdowns.

One well-publicized set of cases have been filed by businesses against insurers who say they won't cover expenses related to the pandemic. Another group is lawsuits against government agencies that continued to charge businesses fees and taxes against companies that could not operate. Similarly, students have sued universities for charging fees for use of campus facilities they were banned from using.

Brian S. Kabateck has led a team that has been suing state and local governments on behalf of restaurants that claim they should not have to pay for liquor licenses and other fees while they were ordered closed. The founder of Kabateck LLP in Los Angeles was careful to note that his clients are not challenging shutdown orders or capacity limits.

"Instead, we always said that restaurants and bars that followed the law and closed (in whole or in part) should get refunds or pro rata refunds for the period of time they were closed," Kabateck said in an email. "At least three counties have so far agreed with us and, although I can't disclose which counties, are working on refunds and credits for these business owners. So our cases continue for the refunds."

Employers could also face a growing wave of litigation from their own workers over business expenses -- and not just for declining to pay for personal protective equipment.

"Unreimbursed business expense lawsuits have always been around, but due to COVID there's been an upswing," said Nina Montazeri, who represents employers as an associate with Sheppard, Mullin, Richter & Hampton LLP in San Francisco. "The Labor Code only requires employers to reimburse for necessary business expenses. Prior to this, personal use of cellphones was voluntary. It wasn't a requirement. But it definitely became required if you had to work from home."

Plaintiffs usually file class actions or under the Private Attorney General Act, both of which can take time, she said. Employees have three years to file, or four if they bring an unfair competition claim. Montazeri recommended employers try to head them off with clear policies and by giving out stipends for past costs.

According to a COVID-19 Employment Litigation Tracker posted by Fisher Phillips LLP, California has the most COVID-related employment cases in the country and trails New Jersey and the District of Columbia in cases per capita. The site also said the most common types of claims involve leave and work from home policies. Health care companies have seen the most litigation, especially whistleblower claims.

Meanwhile, there have been suggestions that some churches want to continue their cases against state or local authorities to prevent future shutdown orders. But Paul M. Jonna, who represented the plaintiffs in South Bay Pentecostal Church v. Newsom, 592 U.S. (2021), which struck the first major blow against Gov. Gavin Newsom's restrictions on churches, said his clients aren't continuing their court fights.

"The church litigation itself is mostly resolved because they've settled and agreed to enter into permanent injunctions, in many cases paying attorney's fees," Jonna said of the government entities.

The partner with LiMandri & Jonna LLP in Rancho Santa Fe said his firm is getting several calls a week from potential plaintiffs who want to challenge vaccine mandates.

But the cases may not be ripe. In March, a group called California Educators for Medical Freedom sued on behalf of several Los Angeles school employees over an alleged vaccine requirement. The complaint, signed by John W. Howard of JW Howard Attorneys in San Diego, said the requirement violates laws against medical experimentation by requiring employees to get a vaccine that has only an emergency authorization from the Food and Drug Administration.

But no such policy exists, argued Littler Mendelson PC partner Connie L. Michaels in the district's motion to dismiss filed last week. California Educators for Medical Freedom v. The Los Angeles Unified School District, 2:21-cv-02388-DSF-PVC (C.D. Cal., filed March 17, 2021).

Assemblyman Kevin Kiley, R-Rocklin, an attorney, introduced AB 327, which would ban the state government from requiring proof of vaccination "as a condition of receiving any service or entering any place." At least 10 other states have passed such bans, but Kiley's bill has not received a vote.

The state appears to be sidestepping the issue. In April the state Department of Public Health introduced guidelines that would make it easier for businesses to open to more customers if they require proof of vaccination. At a news conference Friday, Newsom said the state is working on an online system businesses can use to check the vaccination status of customers, but added, "There is no mandate."

"We're waiting to see what the state does with vaccine verification," Jonna said. "If people are prevented from traveling because of their vaccine status I think there's some fundamental rights at issue there. There's some conscientious objections, religious objections."

In 2018 a unanimous panel of the 3rd District Court of Appeal upheld SB 277, a 2015 law that eliminated the personal belief exception to rules requiring children to be vaccinated to attend public schools. Love v. Board of Education, 2018 DJDAR 11622 (Cal. App. 3rd, filed Nov. 17, 2017).