January 05, 2021


Jason A. Levine, Peter E. Masaitis, Ryan Martin-Patterson, and Stephen Tagert, Alston & Bird LLP

COVID-related litigation continued over the holidays, albeit at a slower pace. The top four developments are:

1. California Plaintiffs Sue Amazon Over Working Conditions

Overview:On December 18, 2020, a former Amazon delivery driver brought a putative class action in California state court alleging that Amazon violated California’s labor code by not sufficiently protecting its employees from COVID-19.

Complaint: The named Plaintiff, Corey Stuart, worked as a delivery driver from April to May 2020. Mr. Stuart alleges that he was effectively an Amazon employee, despite being hired as an independent contractor and being employed by Apollo Couriers, and not Amazon. The Complaint alleges that Amazon did not provide sufficient PPE.

Our Take:We’ve previously covered similar suits against Amazon in New York, one for an alleged public nuisance and one for purported discrimination during the pandemic. Employers like Amazon will likely face continued pressure in plaintiff-friendly jurisdictions like California and New York.

2. Zoom Hit with ADA Case for Closed-Captioning Service Fees

Overview:On December 18, 2020, two hearing-impaired individuals brought a class action in the United States District Court for the Eastern District of New York alleging that Zoom has violated the Americans with Disabilities Act (ADA) and California and New York state law by requiring users to pay a fee for closed-captioning services.

Complaint: The named Plaintiffs—Russell Kane, a resident of New York, and Christopher Myers, a resident of California—are hearing-impaired individuals who rely upon auxiliary aids and services, interpreters, and Video Remote Interpreting communication software. They filed a proposed class action complaint against Zoom for violations of the ADA, alleging that Zoom’s imposition of a surcharge for closed captioning prevents them from benefitting from Zoom’s services.

Our Take:We previously covered privacy claims against Zoom that were filed earlier this year, but this is the first case we have covered related to disability claims against Zoom. As videoconferencing continues to be a preferred method of communication during the pandemic, the outcome of this case could impact all videoconferencing providers.

3. Poultry Companies Hit with Lawsuits for Alleged Failure to Follow COVID-19 Regulations

Overview:Two lawsuits, one in Iowa and one in California, illustrate the applicability of COVID-19 regulations. In California, a state court issued a temporary restraining order and preliminary injunction requiring a meatpacking facility to comply with health requirements after an outbreak in the plant allegedly caused 400 infections and 9 deaths. In Iowa, Tyson Foods faces a suit brought on behalf of an elderly plaintiff who allegedly died as a result of workplace exposure to COVID-19.

California Order: On December 23, 2020, Judge Brian L. McCabe of the Superior Court of California for the County of Merced issued an order requiring Foster Poultry Farms to comply with county COVID-19 requirements. The court rejected Foster Farms’ contention that the Defense Production Act preempted Merced County regulations and held that the requirement was not unduly burdensome on Foster Farms because it had already agreed to implement certain mitigation measures.

The court required Foster Farms to, among other things: ensure that all employees are informed of testing requirements in English, Spanish, and Punjabi; provide proper face coverings at no cost to employees and volunteers; employ enhanced sanitation measures; and follow all state orders, including those related to food packing and processing, which require certain barriers between employees and distance requirements.

Iowa Complaint: The family of Michael Steven Everhard—a 65-year-old Tyson Foods worker who allegedly died as a result of workplace exposure to Covid-19—filed a complaint in the Iowa District Court in and for Buena Vista County, asserting negligence and gross negligence claims. Everhard claims that Tyson did not add more safety protocols, such as requiring employees to be six feet from each other, after COVID-19 outbreaks had occurred at other Tyson meatpacking plants.

Our Take: These suits are like many others that have been filed this year against employers. Compliance with state and local guidelines plays an important role in such suits.

4. Federal Judge Rules Against Challenge to Philadelphia COVID Restrictions

Overview: On December 23, 2020, Judge Nitza I. Quiñones Alejandro of the Eastern District of Pennsylvania declined to issue a preliminary injunction blocking the enforcement of gathering restrictions issued by the City of Philadelphia’s Office of Special Events (“OSE”). This case included a noteworthy intervention by the United States Attorney’s Office for the Eastern District of Pennsylvania, which argued that allowing protests related to Black Lives Matter while blocking a veterans’ parade violated the First Amendment.

Background:On July 14, 2020, the OSE issued an event moratorium stating that it would not process or approve applications for events or public gathering of 50 or more people on public property in Philadelphia through February 28, 2021. The moratorium exempted demonstrations and other activities protected by the First Amendment. On November 23, 2020, the Mayor of Philadelphia issued an executive order further clarifying restrictions on gatherings during the pandemic.

Plaintiff, a veterans’ society which organizes an annual parade honoring veterans, sued the Mayor and City of Pennsylvania challenging both the OSE’s restrictions and the Mayor’s executive order for allegedly violating First Amendment rights to speech and assembly. Plaintiff also moved for a preliminary injunction, seeking to enjoin enforcement of the gathering restrictions.

Decision: Judge Alejandro ruled for the City and Mayor and denied Plaintiff’s motion for a preliminary injunction. The court first held that, because the parties agreed that the OSE’s moratorium was a non-binding “policy statement,” and had been implicitly and explicitly rescinded by subsequent executive orders allowing parades, Plaintiff’s challenge was moot.

Judge Alejandro also held that the November 23 executive order likely did not violate the First Amendment. As a content-neutral restriction, it did not need to be the least restrictive means of achieving the government’s goal, and was sufficiently tailored to serve the City’s interest of reducing the spread of COVID-19.

Our Take:This case follows several others challenging municipal and state restrictions on gatherings related to COVID-19. Some other challenges have had more success than this one, including a challenge in Pennsylvania to business restrictions which we previously covered.