Panelists presenting at LeadingAGe
From left: Mollie Burks, Linsey Mack Romano and Heather Gwinn Pabon from Gordon & Rees Scully Mansukhani present on COVID-19 employment litigation trends during the LeadingAge Annual Meeting + Expo in Denver. (Credit: Robb Cohen Photography & Video)

COVID-19 continues to challenge senior living and other long-term care providers on various levels. But the message from the legal field remains consistent: communicate and document.

During last week’s LeadingAge Annual Meeting + Expo in Denver, legal experts laid out the litigation trends they are seeing from residents and their families as well as from employment claims.

Now is not the time to be complacent, all of the attorneys agreed, recommending that providers review and update their policies, maintain a heightened focus on quality and safety, and document everything.

“COVID’s not going away, despite the fact that we want it to go away,” said Glenn Fox, executive vice president and general counsel for Acts Retirement–Life Communities. “If we let our guard down now and have this come through our communities, I don’t think the courts going forward are going to look as kindly on us, because we should know how to handle these things.”

The silver lining in all of this, said Cory Kallheim, vice president of legal for Covenant Living Communities & Services, is that communities have become better at communicating. Providers should take advantage of that improved communication with residents and their families when something bad happens, because “it can make a difference in some cases,” he said.

“You can’t stop people from suing you, but communication and transparency can really go a long way,” Kallheim said. “It doesn’t hurt.”

COVID-19 claims against long-term care providers

After two years of court closures and delays, COVID-19 claims against long-term care providers are making their way through the legal system. 

Although the field is seeing a steady increase in COVID claims being filed, Marsh Senior Vice President Tara Clayton said it’s not the huge jump that many anticipated. Plaintiffs’ attorneys, she said, may be waiting to see what happens with the Public Readiness and Emergency Preparedness Act and the sunsetting of immunity protections adopted during the pandemic, along with outcomes of cases already making their way through the courts. 

The industry is awaiting a decision by the US Supreme Court on whether it will hear a PREP Act case involving a nursing home. The case was brought by the relatives of a man who died from COVID-19 while he was a resident at Glenhaven Healthcare in Glendale, CA. 

After two years of negative media attention, Clayton said, a concern exists that the healthcare halo effect — wherein frontline workers are seen as heroes — in senior living and other long-term care cases might be in jeopardy. 

Covenant’s Kallheim said he is curious to see how juries look at COVID-related cases after multiple waves of COVID and multiple rounds of vaccinations and boosters. 

“It will be interesting to see how juries view claims and their perspective of what you did or didn’t do,” he said. 

The bottom line, however, Act’s Fox said, is that someone has to prove negligence.

“When this happened two-and-a-half years ago, no one knew what COVID was,” he said.

Fox added that some plaintiffs’ counsel are bringing actions that appear to be COVID claims, although arguments involve everything but COVID, including wrongful death and negligence. The tactic, he said, is due to that uncertainty of how COVID cases will play out.

Looking to the future, Clayton said, claims tied to COVID are not going away, but immunity protections will end — and many insurance policies now contain some type of communicable disease exclusion.

Concerning trends on the horizon

Almost one-third of all pandemic-related charges filed with the Equal Employment Opportunity Commission since April 2020 involved vaccination-related disputes, Clayton said. 

According to the Fisher Phillips COVID-19 Employment Litigation Tracker, 20% of all COVID-19-related lawsuits filed since 2020 are related to vaccine disputes. And Clayton anticipates that the number will increase as EEOC claims wend their way through the administrative process.

The healthcare field, including long-term care, has seen the most employment-based lawsuits filed against it, with 1,391 cases filed between March 23, 2020, and Oct. 24, 2022, according to the Fisher Phillips tracker. In the past 30 days, California (56), New Jersey (24) and New York (21) saw the most new cases, with employment discrimination the most common type of lawsuit among the COVID-19-related actions filed, followed by retaliation/whistleblower, remote work/leave conflicts and vaccination lawsuits.

In a separate presentation on employment litigation, attorneys from Gordon & Rees Scully Mansukhani said that the long-term care field reached its peak staffing turnover rates at the end of 2021, fueled by shortages in resources, personal protective equipment and staffing as well as vaccine requirements and general exhaustion.

Heather Gwinn Pabon, a managing partner in Gordon & Rees’ Nashville office, said that long-term staff members felt forgotten during the pandemic as the country’s healthcare focus fell on hospitals.

“The perfect storm of staffing issues will continue for years,” she said.

The fixes that weren’t

Staffing challenges led operators to implement “fixes” across the sector in the form of shift differentials; hazard pay; attendance, referral and retention bonuses; and remote work options, where possible.

All of those changes, said Mollie Burks, a partner in Gordon & Rees’ San Francisco and Los Angeles offices, created “significant” opportunities for major wage and hour pitfalls. And some of those pitfalls are “trending hard” in the form of unpaid wage claims, meal period and rest break claims, unreimbursed business expense claims and California’s Private Attorneys General Act claims — a model being looked at by other states.

PAGA authorized “aggrieved” employees who are subject to labor code violations to act as private attorneys general to recover civil penalties from their employers for violation provisions of the California Labor Code. PAGA claims in California have increased 1,000% since 2004, Burks said.

Wage and hour risks, she said, carry “big, pricy consequences” in the form of class action claims. Once a claim is certified as a class action complaint, she said, it is “very difficult to defend” and not typically an insured liability. Even minor violations can add up, depending on the number of employees involved and the frequency of violations.

The increased use of staffing agencies also has brought risks to operators, both when it comes to resident care and to wage and hour questions, Burks said. 

Staffing companies found strength during and after the height of the pandemic, filling an important need. Some agencies, however, took advantage of the pandemic, further challenging an already-taxed industry, through price-gouging.

Several states attempted to pass legislation to discourage price-gouging, but only Oregon, Kentucky and Iowa were successful, Burks said. Colorado put a statute in place this year to address some of the concerns related to staffing agencies, requiring certification, to regulate them to some degree.