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Posts Tagged ‘COVID-19’

Georgia Federal Court Among the First to Restrict Applicability of Georgia COVID Emergency Orders Extending Statutes of Limitations

Posted on: June 4th, 2021

By: Wayne Melnick and Carlos Fernandez

The COVID-19 pandemic slowed the roll of most, if not all, cases. Now that the brakes are being slowly eased-off, questions are arising about the Georgia Supreme Court’s Emergency Orders that extended the statute of limitations deadlines. A new case from the Middle District of Georgia interpreted the Emergency Orders finding the 122-day stay of statutes of limitations only applied to cases whose limitations deadline fell during that 122-day period.  As a result, the Court dismissed the plaintiff’s case as barred by the statute of limitations.

On November 1, 2018, the plaintiff was cleaning a machine when it suddenly restarted, and the blades mangled his left hand. Plaintiff timely filed suit against one party and then after the statute of limitations ran, without objection and with the Court’s leave, the plaintiff filed his Amended Complaint on January 19, 2021 naming a new party defendant.  In its motion to dismiss, the new defendant argued that the complaint could not be amended as the statute of limitations ran on November 1, 2020. Although the plaintiff argued that the Emergency Orders added 122 days to all statutes of limitations and the amended complaint was filed within 122 days of the expiration of the limitation, the District Court disagreed, finding the Emergency Orders did not grant a 122-day bonus extension to all cases, but rather only applied to deadlines that ran in the period between March 14 through July 14, 2020.  Determining that the Emergency Orders only applied to extend time for cases whose statute of limitations ran during that 122-day period, the Court held it was “simply unreasonable” to grant every plaintiff an extension regardless of when their statute of limitations ran.

This ruling is important for all attorneys and claims representatives handling claims and cases in Georgia. Now, at least one court has made clear that not all claims or cases may benefit from the 122 extra days provided by the Emergency Orders. Rather, those Emergency Orders only apply to cases whose deadlines fell within that time period.  Defense attorneys should be mindful of this ruling and seek to dismiss any case attempting to take advantage of these Emergency Orders when otherwise not entitled.  We will continue to monitor developments and rulings related to the interpretation of the Emergency Orders as we expect this ruling to be appealed.

Update: June 21, 2021 – On June 6, 2021, the order in this case was vacated because the parties stipulated to substitute the relevant parties from the Motion to Dismiss. While this order can no longer be relied on as authority, it should also be looked at as a measuring stick for the Middle District of Georgia’s, and potentially other districts, outlook on adding 122 days to all statute of limitation deadlines. Most importantly, the rationale presented in the order is still valid and practitioners should consider advancing the same arguments if the proper case presents itself.

If you would like a copy of this case, Owens v. Perdue Farms, Inc., please contact Wayne S. Melnick at [email protected] or Carlos A. Fernandez at [email protected] directly.

EEOC Issues Guidance on Mandatory COVID-19 Vaccine Programs and Permissible Vaccine Incentives-What Employers Need to Consider

Posted on: June 3rd, 2021

By: John Bennett and Doug Blatecky

Although many businesses have not mandated that their employees get a COVID-19 vaccine, the EEOC’s recently released guidance confirms that federal equal employment opportunity laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated. It remains unclear whether not businesses can require employees to continue to work remotely to receive the vaccine. 

Although employers may require vaccinations for returning employees, such mandates are still subject to reasonable accommodations required for individuals with disabilities or religious objections. In addition, employees who are not vaccinated because of pregnancy may be entitled to accommodations. The EEOC’s guidance provides several examples of reasonable accommodations, which might include maintaining social distance from other employees, wearing a mask, periodic testing, working an alternative schedule, or working remotely. It is important to have an interactive dialogue with employees who object on the basis of a disability, sincerely held religious belief, or pregnancy to determine what, if any, accommodation would be reasonable under the circumstances. The EEOC also reminded employers that to determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an individualized assessment of the individual’s present ability to safely perform the essential functions of the job must be undertaken.

Employers that choose to implement a mandatory vaccine program should also be aware of the potential for claims that implementation of such a program has a disparate impact on employees within a certain protected group. Because some demographic groups may face greater barriers to receiving a COVID-19 vaccine than others, some employees may be more likely to be negatively impacted by a vaccination requirement. Thus, risk-averse employers may choose to encourage (rather than require) employees to get vaccinated and educate employees as to the benefits of vaccination.

The new EEOC guidance also expressly permits employers to provide incentives to employees for providing proof of vaccination. However, if the employer is sponsoring its own vaccination program for employees, incentives offered cannot be so substantial so as to be coercive. In addition, the Genetic Information Nondiscrimination Act prohibits employers from offering incentives to employees to have their family members vaccinated, but permits employers to extend the program to family members without incentive.

Finally, proof of vaccination is a protected medical record under the ADA and employers must take care to maintain its confidentiality, i.e., employers cannot generally share with the workforce the identity of who has or has not been vaccinated.

Guidance concerning the COVID-19 pandemic continues to evolve and leaves many employers with questions. If you have any questions or would like additional guidance, please contact our attorneys.  

For more information, please contact John Bennett at [email protected] or Doug Blatecky at [email protected].

Two Lawsuits Test the Permissibility of Mandatory COVID-19 Vaccination Policies in Employment

Posted on: May 11th, 2021

By: Michael Hirota

As the COVID-19 vaccine becomes more widely available within the United States, many employers are grappling with how to incorporate employee vaccination into their return-to-work requirements.  Two recent lawsuits in New Mexico and California challenging mandatory vaccination policies represent the first lawsuits in what could be a new type of COVID-19 litigation in the coming year.

Earlier this year, New Mexico corrections officer Isaac Legaretta has sued his employer, the Dona Ana County Detention Center, when it issued a “Mandatory COVID-19 Vaccine Directive” requiring first responders to receive a COVID-19 vaccination as a condition of ongoing employment.  Legaretta sought a temporary restraining order enjoining his employer from terminating him.  Though the District Court denied his motion for a temporary restraining order, Legaretta has filed a motion for leave to amend, claiming that since the filing of the initial Complaint, Legaretta was demoted and subjected to a hostile work environment, resulting in his constructive termination.  The motion for leave to amend also seeks to add a second plaintiff, Anthony Zoccoli, who was allegedly fired for not consenting to be vaccinated.

In Los Angeles, California, several employees of the Los Angeles Unified School District filed a federal lawsuit seeking to enjoin LAUSD from implementing a mandatory vaccination policy.  The employees allege that LAUSD’s vaccine mandate constitutes nonconsensual human experimentation in violation of State, Federal, and international law.  Hearing on the employees’ Motion for Preliminary Injunction in the LAUSD case is currently set for May 17, 2021.

Both lawsuits focus primarily upon the lack of Food and Drug Administration approval for any currently-available vaccines, arguing that the federal regulations do not permit a vaccination mandate for “unapproved products.”

One hurdle that these lawsuits face is the guidance promulgated by state and federal regulatory agencies which seems to allow employer-issued vaccine mandates assuming the proper accommodations are explored for protected employees unable to receive the vaccine.  On December 16, 2020, the EEOC issued guidance suggesting that a vaccine mandate is permissible assuming proper consideration is given to ADA and Title VII issues by the employer requiring the vaccine. 

Similarly, on March 4, 2021 the California Department of Fair Employment and Housing also promulgated guidance on mandatory COVID-19 vaccination policies.  Though the DFEH refused to provide guidance on whether an employer should implement such policies, it did state that an employer may require employees to receive an FDA-approved vaccination against COVID-19 “so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to the disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity.”

In light of this recent guidance by the EEOC and other agencies, many employers may wonder whether they can enact similar vaccine mandates for their employees.  Even assuming FDA approval of one or more of the available vaccines, the answer, unfortunately, is the famous lawyer mantra: “it depends.”

While an employer may be able to construct a program mandating that all employees receive a COVID-19 vaccine, the policy must nevertheless comply with all applicable anti-discrimination laws and statutes.  In particular, an employer must conduct an individualized assessment as to whether an unvaccinated employee would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  An employer must also design this program to ensure that it can address an employee’s requests for exemptions based on (i) medical conditions which make receipt of the vaccine dangerous or otherwise inappropriate for that individual or (ii) sincerely held religious beliefs protected under Title VII.

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  However, the employer would still need to assess whether terminating the employee would run afoul of any EEO, federal, state, or local statutes.

Finally, both the New Mexico and LAUSD lawsuits are based heavily on the current lack of FDA approval for any of the available COVID-19 vaccines (which are being issued through the FDA’s Emergency Use Authorization procedures).  Thus, it is possible that these and similar claims will be rendered largely moot if one or more of the vaccines receive FDA approval.

Employers looking to secure their workplaces and return to relative normalcy through a vaccine mandate should consult with experienced employment counsel to help navigate the complex and constantly-evolving landscape of federal, state, and local laws and regulations.

For more information, please contact Michael Hirota at [email protected].

FMG Education Law Blog Series: Special Education Issues Facing Schools in the COVID-19 Era

Posted on: April 22nd, 2021

By: Tia Combs and Candice Jackson

Part 2: “A Year Online” 

A New and Deadly Virus

In January 2020, few Americans were aware the outbreak of a novel coronavirus that was about to dramatically alter how nearly every person and institution conducted their daily lives. On January 29, 2020, there were only five cases total in the United States. By mid-March, COVID-19 had caused a global pandemic, shutting down all but the most essential services across the nation.

As the novel coronavirus spread across the world and began to circulate in the United States, educators began to look to the government for guidance on how to cope.  By February 11, 2020, the American Federation of Teachers called for guidance from the federal government as to how schools should handle the threat.  In mid-February, individual schools and districts began to make the decision to close for deep cleaning, planning to reopen after a few days or a week. On February 25, the Centers for Disease Control (CDC), warned that schools should prepare for the threat of the new virus.

Soon after the World Health Organization declared COVID-19 a worldwide pandemic on March 11, 2020, schools across the United States shut their doors to students. The first statewide shut down occurred in Ohio, when Gov. Mike DeWine announced all Ohio Schools would close. By March 25, all public schools in the United States had closed, as to in-person instruction. Most schools continued to be closed until at least the end of the spring 2020 semester. This left schools scrambling to provide educational instruction, with unique questions and challenges regarding providing special education services to students with disabilities.  

School Districts React

From the start of the pandemic schools worked quickly to do what they could to substitute remote learning for in-person education. Schools scrambled to buy and distribute hardware and software needed to make remote learning a reality, amidst questions about equitable access for populations of students on whom the difficulties associated with learning online fall disproportionately.

Chromebooks suddenly became the hottest product on the market. So many Chromebooks were ordered that the New York Times reported that sales of the devices in 2020 rose as much as 41% over 2019. Los Angeles Unified School District alone reportedly spent $100 million on computers in March 2020 to distribute devices to students for online instruction and train teachers and staff. 

Almost all districts had to tackle a preexisting digital divide as the need for good internet access became the deciding factor as to whether a student could go to school successfully or not. Districts purchased and distributed wi-fi hotspots. Some districts whose students have spotty in-home internet access set up mobile wi-fi hotspots in the parking lots where their school buses now sat idle.

As most schools transitioned to teaching students virtually, special education presented a particular problem.

A Specialized Curriculum

To understand the nature of the problem presented by trying to provide special education virtually, it helps to consider what exactly special education is. In Part 1 of this blog series we examined how the IDEA requires all public school districts to provide a “free appropriate public education” (FAPE) to students with disabilities and how the contours of FAPE have been defined and redefined over the years. But, as a practical matter, how does the implementing of FAPE work?

By definition, special education describes “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.” 34 CFR 300.39(a)(1).  Perhaps the crux of the definition is the term “specially designed instruction,” which is also defined as “adapting…the content, methodology, or delivery of instruction to address the unique need of the child that result from the child’s disability and to ensure access of the child to the general curriculum.” 34 CFR 300.39(a)(1). 

School districts generally accomplish designing specially designed instruction for students with disabilities by looking at the grade-level standards and the needs of the individual student. Teaching methods are then adapted to help the individual student get the benefit of the curriculum in a manner that is tailored to that student. For example, a student with dysgraphia, a neurological disorder that impairs fine motor skills and the ability to write, might be provided with a scribe or a computer to help her take notes. Another student with the same disability with might benefit from additional time for assignments and tests, or permission to take a test in a room without the distraction of peers. Or, a student with severe cognitive or developmental disabilities might have an aide assigned just to him that helps him progress through the school day, while another student with the same disabilities may instead be placed in a special education class for all or part of the day. The specific accommodations a child needs are decided upon by his or her IEP Team at a meeting and then memorialized in the IEP.

Depending on the special education services that a student needs, providing those services in a virtual environment, in a manner that is as effective as when the services are provided in-person, may present significant challenges.

Federal Response

Initial Confusion

With districts and schools faced with the seemingly insurmountable challenge of adjusting to closed school buildings with little or no preparation, the United States Department of Education (ED) issued its “Questions and Answers on Providing Services to Children with Disabilities During a COVID-19 Outbreak” on March 12, 2020. In that document, ED stated:

If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.

The document went on to state that “The Department understands there may be exceptional circumstances that could affect how a particular service is provided.” However, the overly simplistic statements from ED did little to allay the fears of school administrators that provision of FAPE might not be possible, at least for some students with disabilities, in an all-remote setting. The legitimate concern over whether schools could provide FAPE online led some districts to decide not to offer any educational services, at least in the short run, during a time when the general public’s view was that COVID-19 was a short-term problem and that schools and the rest of the country would be “back to normal” after we had “stopped the spread.” Lots of schools, imagining that the pandemic shut-downs would only be for a brief period, closed schools altogether with the hope and expectation that schools could re-open even before the end of the spring term.

However, we learned throughout March and April of 2020 that COVID-19 would not be a short-term problem.  ED realized quickly that its initial statements in the March 12, 2020 Q & A were having the perverse impact of contributing to school closings out of fear of not being capable of providing FAPE online. Only 9 days after the March 12 Q & A, ED published its “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” in an attempt to further clarify.

In the Supplemental Fact Sheet, ED stated:

At the outset, OCR  and  OSERS must  address  a  serious  misunderstanding  that  has  recently  circulated  within  the  educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities. Rather, school systems must make local decisions that take into consideration the health,  safety, and well-being of all their students and staff.  

To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction. 

ED further noted that “federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency…although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies.” The Supplement also encouraged states, districts, and parents to work together to agree on extended timelines and otherwise make mutually beneficial compromises for state complaints, due process hearings, IEPs, eligibility determinations, and reevaluations.

ED Declines to Waive Special Education Requirements

Section 3511(d)(4) of Division A of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (March 27, 2020) requested the Secretary of Education, Betsy DeVos, provide Congress with recommendations concerning whether additional waivers of the IDEA’s provisions were necessary to assist states and local educational agencies with meeting the needs of students and adults with disabilities during the COVID-19 crisis.  

Many districts were dismayed when on April 27, 2020, ED issued its report to Congress stating that Secretary DeVos was “not recommending Congress pass any additional waiver concerning the Free Appropriate Public Education (FAPE) and Least Restrictive Environment (LRE) requirements of the IDEA, reiterating that learning must continue for all students during the COVID-19 national emergency.”

Teachers and districts fretted that without waivers they would fall short of the requirements of FAPE. When the Chicago Board of Education determined that compliance would require a revision of 56,000 IEPs and 10,000 Section 504 Plans, teachers in Chicago went to federal court requesting a waiver of these requirements. Specifically, the Chicago Teachers’ Union filed suit against ED, DeVos, and the Board of Education of the City of Chicago, alleging that ED’s refusal to request waiver of any FAPE requirements pursuant to the CARES Act would require teachers and case managers to revise all of those IEPs and Section 504 Plans within the last six weeks of school. The federal judge, however, held that the case was unlikely to succeed on the merits and was ultimately dismissed.

ED Offers New Guidance

Helpfully, having worked with school districts for half a year at that point to navigate COVID-19 challenges, ED issued a new Question and Answer document on September 28, 2020 addressing how districts should implement IDEA during the COVID-19 pandemic. ED highlighted that while a student’s education could be provided through remote/distance instruction, in-person instruction, or some combination of both, districts remained responsible for ensuring that FAPE is provided. The September 2020 Q&A noted that it was appropriate for an IEP team to consider how special education and related services described in an IEP might be provided both in traditional in-person methods and using remote instruction. When discussing how remote instruction might be provided, ED pointed out that this might include “online instruction, teleconference, direct instruction via telephone or videoconferencing, or consultative services to the parent.”

This guidance was similar to that being provided by state departments of education. Most states issued guidance reminding districts that FAPE was still required but that it might look significantly different than prior to COVID-19.

Schools and Teachers Rise to the Occasion

Education professionals have done an admirable job of finding creative ways to deliver services during the COVID-19 pandemic. Teachers mastered new technologies and conducted classes online, including specialized services for children with disabilities. This required constant adaptation as both students and teachers adjusted to a new paradigm of teaching and learning.

Particularly difficult was the delivery of services that had traditionally been provided only in person such as gross motor skills and behavioral therapy. There were also a lot of questions about setting up online schooling for non-verbal students and those that need one-on-one directions with prompts, redirection, or hand-over-hand instruction.

Special education teachers worked overtime to assess students’ needs in light of the pandemic. Teachers made endless phone calls to determine what tools and other support students would have at home.  They coached parents to help their children in new ways and worked with them to assess goals and objectives to create benchmarks.

Teachers also got involved with more than just students’ academic lives. IDEA requires districts to also address students’ management, physical, and social needs. Teachers recognized that the support their students needed was ongoing and continued to work with students and their parents to get students the education they needed.

Despite heroic efforts by schools and educators, frustrated and frightened parents have filed lawsuits in several states claiming (among other things) that school closures and virtual learning violate the IDEA by failing to provide FAPE. While most such lawsuits are still on-going, at least one court (in New Mexico) has already held that it is possible that some students cannot be provided with FAPE using remote learning. The legal uncertainty around online provision of FAPE thus continues to present schools with significant concerns and risks. Because the heart of FAPE is individualized services based on each individual student’s needs, it is difficult for a court to conclude, for instance, that FAPE can never be provided virtually or that FAPE must always be provided virtually whenever educational services are provided virtually for students without disabilities.

In other words, educators, students, and families have strived mightily to meet unparalleled challenges with a shared goal of continuing to provide quality educational services for American children. But a year into the pandemic, how successful has mass incorporation of virtual learning been, especially for students with disabilities, and what are the legal risk factors facing schools in the coming year? Our third and last blog in this series will discuss the road ahead for school districts when it comes to providing FAPE against the backdrop of long-term changes COVID-19 has wrought on American education, including hybrid distance learning models and learning losses resulting from the pandemic.

For more information about this topic please contact Tia Combs at [email protected] or Candice Jackson at [email protected].

It May Be Legal, But It’s Not Civil

Posted on: April 13th, 2021

By: Michael Weinberg

A recent decision in the matter of Legal Sea Foods, LLC v. Strathmore Insurance Company, USDC (Mass) further addressed coverage for business income and extra expense losses caused by both state and local governments nationwide orders (the “Orders”)  in response to the Covid 19 pandemic. Legal Seafoods is a chain which operates 32 restaurants in the eastern United States (the Designated Properties”). Its restaurants were covered by a Strathmore property insurance policy (the “Policy”) which provided Business Income and Extra Expense for covered causes of loss.  Legal Seafoods incurred business income losses because of civil authority orders impacting its operations and because of the physical presence of Covid 19 infected individuals on its premises. The parties agreed interpretation of an insurance policy is a question of law and that Massachusetts law would govern. Based on the Court’s review of alleged facts, the complaint was dismissed.

Legal Seafoods claimed Strathmore breached its insurance contract for failure to provide coverage under the civil authority provision of the policy requiring Strathmore to pay Legal’s business interruption losses resulting from an action of civil authority.  The Policy provided coverage if the action “prohibits access” to the Designated Properties. The court distinguished between a government order which “prohibits” access to one which “limits” access. An order not preventing entrance to the insured premises but rather limiting the type of services provided does not “prohibit access.” Legal Seafoods alleged the orders mandated closure of and prohibited access to some of its restaurants. However, Legal Seafoods could not point to an order which “completely prohibited access to any of its Designated Properties.” In fact, Legal acknowledged the Orders permitted its restaurants to continue carry-out and delivery operations. Legal could not establish a necessary prerequisite of civil authority coverage: a prohibition on access to the premises. The fact that it was not financially feasible for Legal Seafoods to continue restaurant operations solely for carryout and delivery sales thereby forcing closure was immaterial. The relevant inquiry was whether the Orders completely prohibited access to the Designated Properties.

Legal Seafoods also pressed for coverage because of direct physical loss. Here, it alleged Covid-19 was “physically present on its properties” and caused loss or damage to those properties resulting in suspension of its operations. The court found the allegations insufficient. Courts in Massachusetts have narrowly construed the meaning of “direct physical loss” as requiring some kind of tangible, material loss. There must be enduring impact to the actual integrity of the premises. While the virus may harm human beings, this is not the case with property.

This decision is in line with the majority of others which have addressed business income loss insurance for companies impacted by the Covid 19 pandemic. Interpretation of the policies is made under the state law which applies. Courts interpreting policy language with a fair reading have found no business income loss. There are some outliers. These courts may find ambiguity in the policy’s insuring agreement or definitions and allow a case to move forward. Certain companies have gone through difficult times and an “ambiguity” may put out a lifeline to some whether called for or not.

For more information, please contact Michael Weinberg at [email protected].