When an elderly resident at an assisted living facility in Texas returned from the hospital after a surgery, she needed round-the-clock care – and the management put six workers on the case.
Among them were Monica Montgomery and her daughter Nya Patton.
It turns out the elderly resident had tested positive for Covid-19 at the hospital during her stay in early April, according to court records. Four of the six workers, the records say, later also tested positive – including both Montgomery and Patton, who was pregnant.
Patton recovered, but Montgomery, 44, died on May 10 – Mother’s Day. She never met her first grandson, who was born in August.
Her family has filed a wrongful death suit against the assisted living facility, charging not only that the six workers didn’t know about the resident’s infection, but also that the management was aware of it and neglected to tell the workers – allegations the owner of the company vehemently denies.
As the coronavirus continues its assault on the United States, throwing all aspects of everyday life into upheaval, the courts offer a lens into how treacherous things have gotten in one of those arenas – the American workplace.
The Montgomery family’s suit is among hundreds of labor-and-employment cases pertaining to the pandemic that have been filed nationwide, according to two widely cited legal trackers by law firms Hunton Andrews Kurth and Fisher Phillips.
“You are going to see that number grow exponentially over the next six months to one year,” said Joseph Seiner, a law professor at the University of South Carolina with expertise in employment matters. “I think you are on the front end of a tidal wave.”
Seiner, a former appellate attorney with the US Equal Employment Opportunity Commission, said there is no good historical analogy for how this health crisis could impact employment law. The closest comparison, he said, is the Great Recession of 2008, when there was a “huge jump” in employment lawsuits as jobless rates went up.
The nature of the coronavirus-related disputes vary, from allegations of wrongful death as a result of unsafe working conditions to wrongful termination for trying follow governors’ orders to accusations that employers are using Covid-19 as a pretext for terminating employees for discriminatory reasons.
The specter of Covid-related workplace claims has caught the attention of Senate Majority Leader Mitch McConnell (R-Kentucky), who introduced a controversial piece of legislation that would add a layer of protection to employers against coronavirus-related workplace suits.
Pro-business groups have sounded alarms about an “epidemic of lawsuits”; worker advocacy groups say the suits are often the best way to demand accountability.
The suits filed to date cut across sectors and class and have hit states from coast to coast. Each one offers a telling snapshot of just how fraught the workplace has become in the age of the coronavirus.
Lawsuits reveal pressure points
For some, the mundane act of simply reporting to work in 2020 has meant making what plaintiffs characterize as an impossible choice – between job and health, for instance, or gainful employment and acting ethically.
They include a kitchen worker who filed a restraining order case against a Dallas restaurant that had stopped giving her hourly work for violating its no-mask policy. (A judge ruled in the employee’s favor in May, ordering the restaurant to stop retaliating against her; the restaurant scrapped its no-mask policy later than month.)
And they include a funeral home president in Kentucky who says she was fired by the company owner for trying to follow the governor’s recommendation to limit the size of gatherings. (The company denied the allegations in court; in an email to CNN, the plaintiff’s attorney said the case has been resolved in a confidential settlement agreement .)
Other employees have been laid off, ostensibly due to cutbacks caused by the coronavirus, but believe Covid-19 was used as a cover for their termination.
These include a woman who says she was the only person let go – and the only non-White member of a Pennsylvania real estate company’s human resources team. And in a salacious Hollywood case, a talent agent who says she and others were really fired in retaliation for blowing the whistle on their high-profile CEO, Sam Gores – who they allege mismanaged funds and spent company money on prostitutes. (Gores and the agency vehemently deny the charges, and the suit is moving to arbitration.)
Some employers claim that they are the victims of the lawsuits, even though they’re the defendants.
Alonzoe Zapp, a one-man business who runs Cutting Edge Lawn Care out of his father’s garage in Indianapolis, says his lone hired hand went into quarantine in mid-April after exhibiting Covid-19 symptoms.
During this time, his attorney says, business began to slow down.
“One of the very first things they’re probably going to cut is their lawn care – they’ll do it themselves,” said Zapp’s attorney, Craig Wiley.
When the laborer signaled his desire to return, Zapp said he wasn’t needed anymore.
The laborer sued for retaliation, and is asking for either reinstatement or all of his backpay dating to April 19 – times two – plus attorneys’ fees, Wiley said.
“It’s crushing to a small employer,” Wiley said.
In general, however, the Covid-19 pandemic has exacerbated a dynamic in the American workplace that already puts employees – and especially low-wage employees – at a disadvantage, said Jeffrey Hirsch, a law professor who specializes in labor and employment at the University of North Carolina.
“Employees don’t have a lot of leverage,” he said. “If they refuse to come in, typically – even if they feel unsafe – the employer can lawfully say, ‘(do) your job or else’.”
This is because every state except Montana is an at-will state, meaning employers can fire workers for any reason that isn’t protected by anti-discrimination provisions or other exceptions. In this respect, the United States is unique in the industrialized world, experts say.
Has the pandemic sparked an ‘epidemic of lawsuits’?
McConnell’s proposed legislation would bolster the advantage for American employers even more, critics say.
Fearing that an “epidemic of lawsuits” could crimp the economy, McConnell has co-authored a proposal with Sen. John Cornyn (R-Texas) that would shield businesses, schools and hospitals for five years from suits accusing employers of potentially exposing workers or consumers to Covid-19.
Neil Bradley, executive vice president and chief policy officer of the US Chamber of Commerce, applauds it, telling CNN that employers shouldn’t have to worry about “unwarranted lawsuits” when they are “doing the best that they can in following the applicable public health guidelines.”
But advocates for workers say this would raise an already high burden of proof for plaintiffs, due to the difficulty of proving that a person contracted a virus at a certain location. What’s more, McConnell’s bill would also act as a shield because it means plaintiffs would have to prove gross negligence or willful misconduct as opposed to mere negligence.
Critics say this creates a near-impossible standard.
“Gross negligence is a conscious, willful disregard for the use of reasonable care – so it has to be purposeful,” said Bridget Duignan, who is representing a family suing a meatpacking plant for a Covid-19 infection in Illinois.
The proposed legislation has loomed large in political circles, in no small part because McConnell repeatedly insists it is conditional for the Senate’s support of any new stimulus relief package. (The GOP’s stimulus-relief bill that Democrats rejected on Thursday contained liability protections.)
But while the proposed Safe to Work Act has generated a fair amount of controversy, it would actually have little to no impact on most workplace cases with ties to coronavirus, experts say.
That’s because many of them focus not on exposure to the virus but other matters, such as retaliation, leaves of absence or discrimination.
So while the legislation would pertain to cases like the mother and daughter who were allegedly infected at the assisted living facility in Texas, it likely wouldn’t impact many wrongful-termination cases that are presently wending through the courts. And it wouldn’t impact many cases in a subcategory of Covid-related wrongful termination suits that has cropped up: People who say they were fired for trying to obey state guidelines – or who say they were pressured to violate the law.
A first day filled with panic
The first confirmed coronavirus case on American soil was announced on January 21 in Washington state. It was so novel that the name for the disease it caused – Covid-19 – hadn’t even been coined.
By mid-March, the Evergreen State was fully in the grip of the first US outbreak. The nation watched in horror as the hospitals filled up and the death toll mounted.
In a preview of what would happen nationwide, many employees were furloughed due to widespread closures.
Washington Gov. Jay Inslee issued an eviction ban on March 18 – the nation’s first.
Less than a week later, on March 24, Vanessa Sweitzer started a new $23-an-hour job as a leasing agent for a property management company in Tacoma, Washington.
Sweitzer, 58, says she stepped into the office of JRK Residentials that day to a frenetic scene.
“The phone was ringing off the hook from the minute you got into the office,” she told CNN. “There were people that had lost their jobs, they didn’t know how they were going to pay their rent.”
According to her complaint, Sweitzer was directed to start answering phones and tell residents of the 700-unit complex – called the Boulders at Puget Sound – that “rent must be paid on time or late fees would accrue and the resident’s credit would be ruined.”
She says she raised objections to managers – both about the messaging to troubled tenants and later for having to give in-person tours with no protective equipment.
Sweitzer’s objection prompted a senior manager to tell her to “step up our game or ‘you are out!’” the documents say.
The company – which manages rental units around the country – fired her on April 21, less than a month after she started, saying she was “not a good fit” and had been “unprofessional,” according to court documents.
Sweitzer, who had moved into the complex herself, says she, too, then began receiving letters – affixed to the door of her apartment – demanding payment of rent.
She sued, claiming, among other things, that the company’s instructions to her were out of compliance with state laws about charging late fees to tenants.
Her complaint also cites Washington state’s suit against JRK Residential on April 20 for violating Gov. Inslee’s evictions proclamation that forbade landlords from issuing notices-to-pay-or-vacate letters to renters.
The company in late May was ordered to pay nearly $350,000 – most of it directly to tenants. It was the first legal enforcement of a Covid-19 proclamation in the state.
In a statement to CNN, James Baumann, the general counsel and a senior vice president at JRK Residential, said the company “immediately halted all eviction actions” at the beginning of the pandemic. The company, he added, eliminated late fees and fees associated with using credit and debit cards, offered short-term renewals “with increased flexibility” and has frozen rent increases throughout the state.
“Recently, JRK became aware of legal action taken by a former employee who was fired for cause after being with the company for only a few weeks,” Baumann wrote. “Any termination is unfortunate, but as a customer-facing company with the highest standards for behavior, we had no other choice.”
Wrongful death suit captures family’s loss
In Texas, the lawyers for the family of Monica Montgomery – the 44-year-old assisted-living facility worker who died of Covid-19 – believe their case is strong enough to prove “gross negligence” on the part of the facility. This is because they claim management at The Arbor Assisted Living and Memory Care knew and neglected to tell the workers the resident was Covid-positive.
“Our understanding is the resident was tested prior to leaving the hospital and the information that she had been tested should have been on her discharge sheet,” said attorney William Langley.
What’s more, the suit alleges, the manager at The Arbor took special precautions to isolate the resident and her attendants from the rest of The Arbor’s population after the resident returned from the hospital. Specifically, Langley said, at least one of the employees said they were told they could not leave the room, and special precautions were taken to ensure no dirty dishes left the room.
“It was not the typical instructions,” Langley said.
Langley said while the six employees were given homemade cloth masks, none of them – nor the resident – was given medical-grade personal protective equipment.
The elderly resident returned to The Arbor in the small East Texas city of Nacogdoches on April 8. Monica Montgomery tested positive on April 24; her daughter, Nya Patton, had tested positive two days earlier, according to the complaint.
The suit says Montgomery was at greater risk of serious illness due to her health; attorneys confirmed it was because of her weight.
Attorneys for Prevarian Senior Living – The Arbor’s parent company, which runs facilities in several states – declined to comment but provided CNN a copy of the same statement it has sent to local media outlets, in which they expressed their condolences.
“We are deeply saddened to have lost one of our employees to this new and horrible virus,” the statement said, noting that there are no active Covid cases at the facility. “We have implemented, and continue to implement, safety protocols in accordance with and as directed by State and Federal guidelines in an effort to protect our residents and employees from the coronavirus.”
Prevarian said it “vehemently” denies the claims made in the lawsuit and intends to defend itself in court.
After they tested positive, mother and daughter quarantined together in the same room at Montgomery’s house.
On May 2, Patton, 21, woke up from a nap and called her grandmother to say that Montgomery didn’t look right. They called the ambulance, which rushed her to the hospital. Doctors put Montgomery on a ventilator. She died eight days later.
On the day she died, some members of the family went to the grandmother’s house and sat in the yard, wearing masks. For the most part, everybody kept their distance, but the grandmother held her pregnant grandchild.
“Nya was crying so hard,” Judy Montgomery, the grandmother, told CNN. “She needed that touch, she needed a hug, she needed to be rocked. And so, as a grandma, you do what you have to do.”
Patton had her baby on August 19.
“When I look at that baby, and his little eyes are open and he’s looking at me, I’m like, ‘I wish your grandmother was here to hold you,’” Judy Montgomery said, through tears. “There’s not a day go by that I don’t hurt. I miss my daughter.”