Barry McTiernan & Moore LLC, with offices in New York, New Jersey and Connecticut, is fully operational and continues to offer guidance to our clients despite the heavy impact of the Coronavirus on our personal and professional lives.  A number of individuals and businesses will be faced with unprecedented concerns and questions, and Barry McTiernan & Moore is ready and able to assist in legal matters throughout the coming months. We have already received a number of inquiries about the impact of the virus and summarize the areas where future litigation is expected.

There will undoubtedly arise breach of contract claims, whether relating to contracts of employment, purchase agreements, or others. If COVID-related, recall that they have resulted from a natural, unforeseen occurrence, and thus there will be defenses to nonperformance claims. As in all contract claims, it will be necessary to look to the language initially employed, and whether partial performance may perhaps address the issue.

We are likely to see an increase in wrongful termination lawsuits. Recent legislation, generally-speaking, permits some employees suffering hardships from the virus (having to stay home while their children’s schools are closed or due to illness) to receive some degree of paid time off. In response to financial constraints, there has been a wave of terminations. In turn, we expect the employers’ actions will result in many wrongful termination claims, particularly if employees are not rehired after having been furloughed during the crisis period.

Will claims be made against general liability carriers? Absolutely. There will be attempted business interruption submissions on many levels. Generally, they follow as a result of a hurricane, a flood or a fire, and are intended to replace lost income, payroll, getting the company up and running again after the disaster, and/or having to temporarily move to a new location.

On an individual basis, it will be essential to look to see if the claim is a covered loss. What were the exclusions? Post-SARS and Ebola, some underwriters included virus-related exclusions. There are ongoing discussions about potential legislation negating the effects of such clauses; that alone will cause more litigation as to whether they may be legislatively overruled. Going forward, we shall evaluate the effect of the governments’ official mandates to close, and the extent to which they trigger the policies. Keep in mind that there may be contingent business coverage issues as well. For example, if one business relies upon certain suppliers or distributors which have been shut down, such policy language may help recoup some of those losses. (Generally, they only apply if a third party suffers a loss covered under the policy.)

Other expected general liability claims will involve bodily injury claims. The question will be, “Did the insured do something or fail to do something that caused the plaintiff to get COVID-19?” One issue in evaluating these types of claims is whether contracting the virus constitutes a triggering “occurrence.”  Prior coverage decisions about exclusions in mold and asbestos litigation may be relevant for these types of claims.

There are a number of questions which business must contemplate:

  • How are you going to make your place of business a safe place to return to work? Are we now seeing the end of newly publicized open workspaces?  What will constitute the minimal cleaning plans and procedures? Can employees be compelled to travel by air or to places considered “hot zones?” Are employers obliged to pay employees during any imposed quarantine thereafter?
  • If an employee contracted COVID as a result of being in such an office – determined, for example, by an entire team having tested positive – what type of Compensation claims will be allowed? What privacy issues arise in not having told employees of the first suspected case?
  • Whether COVID-19 is compensable under Workers’ Compensation is going to depend on each state’s policies. Most likely, they will be filed as an occupational disease (as opposed to a traditional trip- and-fall work site incident). However, claimants will need to prove how/where they were exposed and that they were put in a position where the risk of contracting the disease was greater at work than in ordinary public space, likely not a hard burden for healthcare workers, first responders, food providers, deliverers, etc.
  • Whether the government will ultimately pass the equivalent of The James Zadroga 9/11 Health and Compensation Act of 2010, establishing a Victims Compensation Fund applicable to the COVID-affected remains a distant possibility. Learning from the experience of those VCF applicants though, we suggest that all volunteers keep detailed records of their work, including time spent helping out, badges issued, letters vetting them and supervisors’ names, so that later claim rights may be preserved.

There will be number of grant and loan programs in place – some formal and some unofficial. Those making long-term regular payments, whether tenants in need of assistance or other payors, may ask for a few months’ credit, and then perhaps for a few months of delayed payments. Payees are counseled to agree; the courts will not look favorably on any such litigation further burdening a backlogged system once it is back and running again. There are already encouragements to the utilities and landlords not to cut anyone off during this crisis period, but how long will that extend?

Consumer debt is expected to be a large issue going forward. There will be displaced or terminated employees who may not be soon re-hired. Anticipate and plan for a trickle-down effect to your clients. A lot of money has been lost on all fronts. The City of Atlanta alone lost $70 million due to the cancelation of the March Madness college basketball Final Four tournament alone. Look out cancellation claims.

Two new coronavirus-related laws of interest to employers have been passed:

  1. Affecting companies with between 1 and 500 employees, note the Families First Act with respect to sick and family leave time. If paying time for such leave, there is a provision whereby the employees who are affected, and who have worked at the company for at least 30 days previously, can receive 10 days of sick leave, but 12 weeks for parents having to deal with schools being closed,  and
  1. The CARES Act offers paycheck protection for small businesses by offering Federally guaranteed low interest loans, some of which may well be forgiven. Banks will be offering applications shortly.

For more information regarding the CARES Act, please see a recent article posted by the National Law Review. https://www.natlawreview.com/article/cares-act-expands-unemployment-insurance-benefits

Should you have any inquiries about how Barry McTiernan & Moore may assist in pending or anticipated legal matters, please contact us at rrayder@bmmfirm.com.