Truck Law

A Transportation Law Blog from TransportationAttorneys.NET

Month: March, 2020

This is a Medical and Legal Article about COVID-19 – the disease caused by the Novel Corona Virus of 2019.

by gspencermynko

As some of you may know, in addition to being a transportation lawyer, I am also a Medical Doctor, working for an urgent care and occupational medical group. As you can imagine, I routinely see patients with upper respiratory and pulmonary symptoms: People complaining of cough, fever, chest pain, shortness of breath; some who have chronic illnesses such as diabetes, lung disease, kidney disease, compromised immunity; and those who are elderly. In other words, people who may have COVID-19. I will share some basic information from the CDC regarding the Corona virus, what you should do to protect yourself, and when to go to your doctor, an emergency room or urgent care. While this is out of the ordinary for my articles, this is an extraordinary time and I want to share my experience as someone who is on the front line dealing with this.

Secondly, I will discuss the recent FMCSA order suspending certain safety rules in response to the COVID-19 outbreak.

What are the Signs and Symptoms of COVID-19?

COVID-19 ranges from mild disease with non-specific signs and symptoms of acute respiratory illness (like a common cold or mild case of the flu), to severe pneumonia with respiratory failure and shock (people who end up in an ICU on a ventilator). Frighteningly, there are people infected with COVID-19 who have NO symptoms and feel perfectly normal – scary because these individuals may pass off the illness to unsuspecting people. Needless to say, it makes diagnosing the illness a challenge and testing for COVID-19 is extremely limited.

Who is at risk for COVID-19?

Patients at greatest risk of infection are persons who have had prolonged, unprotected close contact with a patient with symptomatic, confirmed COVID-19 and those who live in or have recently been to areas with sustained transmission.

If I am concerned about COVID-19, I ask patients these questions:

-Any travel to mainland China (or other high risk areas) in the past 14 days?
-Any contact with a person diagnosed with, suspected to have, in evaluation for COVID-19?
-Any fevers, dry coughs, or shortness of breath?

At the clinics I work at, patients with suspected or confirmed COVID-19 are asked to wear a surgical mask as soon as they are identified and are evaluated in a private room with the door closed.

Who is at risk for severe disease from COVID-19?

Basically, older adults and people of any age who have serious underlying medical conditions.

According to the Centers for Disease Control, those at high-risk for severe illness from COVID-19 include:

People aged 65 years and older
People who live in a nursing home or long-term care facility
Other high-risk conditions:
People with chronic lung disease or moderate to severe asthma
People who have heart disease with complications
People who are immunocompromised including cancer treatment
People of any age with severe obesity (body mass index (BMI)≥40) or certain                      underlying medical conditions, particularly if not well controlled, such as                    those with diabetes, renal (kidney) failure, or liver disease might also be at                   risk
People who are pregnant should be monitored since they are known to be at risk            with severe viral illness.

Many conditions can cause a person to be immunocompromised, including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids (like Prednisone) and other immune weakening medications. Ask yourself if you fall into any of these criteria.

How is COVID-19 treated?

Not all patients with COVID-19 will require medical supportive care. Treatment for hospitalized patients with COVID-19 is focused on supportive care of complications, including advanced organ support for respiratory failure, septic shock, and multi-organ failure. There are currently no antiviral drugs licensed by the U.S. Food and Drug Administration (FDA) to treat COVID-19.
Remember, the vast majority of patients require no specific medical treatment and will recover uneventfully. But don’t play Russian Roulette – take steps to protect yourself.

I work with patients to manage their underlying condition to the best of their ability, including ensuring that patients have sufficient medication and supplies. I encourage all patients, regardless of risk, to:
Take steps to protect yourself (see below)
See a doctor if you are sick with a fever, cough, or shortness of breath.
Follow CDC travel guidelines and the recommendations of your state and local health officials.

How COVID-19 Spreads.

The virus is thought to spread mainly from person-to-person.
Between people who are in close contact with one another (within about 6 feet).
Through respiratory droplets produced when an infected person coughs or sneezes.
These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads. However, the virus that causes COVID-19 seems to be spreading easily and sustainably. It’s going to get worse before it gets better.

Protect Yourself And Others With These Simple Actions

Clean your hands often:

Wash your hands often with soap and water for at least 20 seconds especially after you have been in a public place, or after blowing your nose, coughing, or sneezing.
If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry.
Avoid touching your eyes, nose, and mouth with unwashed hands

Avoid close contact

Avoid close contact with people who are sick
Put distance between yourself and other people if COVID-19 is spreading in your community.

Stay home if you’re sick

Stay home if you are sick, except to get medical care.

Cover coughs and sneezes

Cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow.
Throw used tissues in the trash.
Immediately wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available, clean your hands with a hand sanitizer that contains at least 60% alcohol

Wear a facemask if you are sick

If you are sick: You should wear a facemask when you are around other people (e.g., sharing a room or vehicle) and before you enter a healthcare provider’s office. If you are not able to wear a facemask (for example, because it causes trouble breathing), then you should do your best to cover your coughs and sneezes, and people who are caring for you should wear a facemask if they enter your room.

If you are NOT sick: You do not need to wear a facemask unless you are caring for someone who is sick (and they are not able to wear a facemask). Facemasks may be in short supply and they should be saved for caregivers.

Clean and disinfect

Clean AND disinfect frequently touched surfaces daily. This includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, sinks and gas pumps! See https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html for more information

The FMCSA issued an Emergency Declaration for motor carriers and drivers providing direct assistance in support of relief efforts related to the COVID-19 outbreaks.

The FMCSA ruled that due to the COVID-19 outbreak, an emergency exists that warrants an emergency exemption from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations, excluding Drug and Alcohol Testing.
Specifically, the Emergency Declaration provides relief for motor carriers providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:

(1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;

(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;

(3) food for emergency restocking of stores;

(4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;

(5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and

(6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

The Emergency Declaration of 03/19/2020 is explained here:
https://www.fmcsa.dot.gov/emergency/frequently-asked-questions-related-fmcsa-emergency-declaration-03192020. See the actual declaration here: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-03/FMCSA%20Emergency%20Declaration%203.13.20.pdf.

Arbitration Update! Federal Court Stops California From Banning Arbitration: Federal Judge Stops California From Enforcing AB 51

by gspencermynko

Federal Court Grants Preliminary Injunction on Enforcement of California Ban on Employment Arbitration Agreements.

California Assembly Bill (AB) 51, which bans mandatory arbitration agreements, was set to go into effect on January 1, 2020. However, the Chamber of Commerce of the United States filed a suit to stop AB 51 and succeeded in securing a Temporary Injunction against the State of California from enforcing the new law (this occurred in a very similar fashion as to how the CTA stopped the State from enforcing AB 5 against trucking companies).

The U.S. District Court for the Eastern District of California granted a request for a preliminary injunction to prohibit the State of California from enforcing Assembly Bill 51 (AB 51) as to arbitration agreements governed by the Federal Arbitration Act (FAA). Chamber of Commerce of the United States, et al. v. Becerra, et al., No. 2:19-cv-2456 (E.D. Cal. Jan. 31, 2020).

On January 31, 2020, the Court then granted the request for a preliminary injunction enjoining the State from enforcing AB 51. On February 7, 2020, the court issued its written order detailing its reasoning for granting the preliminary injunction. It ruled that the four factors required for a preliminary injunction were met:

The likelihood of the plaintiffs succeeding on the merits of the case;
The likelihood of irreparable harm to the plaintiffs absent a preliminary injunction;
The balance of the equities; and
Whether an injunction is in the public interest.

As such, the State of California is banned from enforcing AB 51, which essentially makes employment arbitration agreements unenforceable. Chalk up a victory for Employers.

However, enforcement of arbitration agreements in trucking under the Federal Arbitration Act (FAA) became more difficult under New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019).

FAA and Transportation Worker Exception.

Last year the United States Supreme Court ruled that a trucking company cannot compel arbitration in a wage dispute brought by an independent contractor truck driver. Generally, employers can insist upon arbitration agreements in contracts with independent contractors. However, The US Supreme Court has decided that an exception to the Federal Arbitration Act (FAA) applies to independent contractor truck drivers. Even though the plaintiff (an interstate truck driver) had signed an arbitration agreement agreeing he was an independent contractor, the Court held the FAA could not be used to compel arbitration. But the Court also stated that a transportation worker who signed an arbitration agreement could be compelled to arbitrate pursuant to a court’s inherent authority or state arbitration statutes

Who Actually Works In “Interstate Commerce”?

Following the decision in New Prime, courts have made inconsistent rulings as to who falls within the scope of the transportation worker exception, focusing on whether transportation workers are engaged in interstate commerce. These range from “obvious” examples: long-haul truck drivers whos transport goods across state lines are “engaged in interstate commerce”. But what about transportation workers who work within a single state, such as last-mile delivery drivers, couriers, food delivery drivers, drivers of ride-sharing services, and other gig-economy transportation service?

Courts have applied vague, multi-factor tests which result in inconsistent and contradictory results:

These decisions have a broad, inclusive definition of the Transportation Worker Exception:

Waithaka v. Amazon.com, Inc., LEXIS 140605 (D. Mass. Aug. 20, 2019) (last-mile delivery drivers were subject to the transportation worker exception, even though they did not cross state lines); See also Rittmann v. Amazon.com, Inc., 383 F. Supp. 3d 1196 (W.D. Wash. 2019)

Ward v. Express Messenger Sys., LEXIS 175674 (D. Colo. Jan. 28, 2019) (package delivery drivers were subject to the transportation worker exception, even though they did not cross state lines);

Muller v. Roy Miller Freight Lines, LLC, 34 Cal. App. 5th 1056 (2019) (a trucker was subject to the transportation worker exception even though he did not personally transport goods across state lines).

These decisions have a narrow, exclusive definition of the Transportation Worker Exception, where employees are required to arbitrate disputes:

Austin v. DoorDash, Inc., No. 1:17-cv-12498, 2019 U.S. Dist. LEXIS 169728 (D. Mass. Sep. 30, 2019) (food delivery drivers were not subject to the transportation worker exception);

Davis v. Cintas Corp., No. 2:18-cv-1200, 2019 U.S. Dist. LEXIS 87261 (W.D. Pa. May 23, 2019) (route sales drivers were not subject to the transportation worker exception);

Borgonia v. G2 Secure Staff, LLC, No. 19-cv-914, 2019 U.S. Dist. LEXIS 70224 (N.D. Cal. Apr. 25, 2019) (airport employees providing passenger assistance and security services were not subject to transportation exemption).

Using California Law to Compel Arbitration of Transportation Worker Disputes

Obviously, there is great risk that arbitration agreements with transportation workers will not be enforced under the FAA. However, is enforcement under California Law possible? While the FAA provides limited shelter, despite the fight over AB 51, is there third way to compel arbitration?

Arbitration agreements may still be an option for contracts with carriers that are not a one-man/one-truck driving operation. During the oral argument, several justices probed whether an owner-operator who did not personally perform services or who operated multiple trucks would be subject to the exemption. The court did not address these issues in its opinion, arguably leaving them open for future litigation. That said, a trucking company may be able to protect itself if it contracts with another company instead of an individual.

Speak To An Experienced Transportation Attorney About Arbitration and Class Action Waivers.

Trucking and Transportation companies need to evaluate their current arbitration agreements to maximize their chance at enforceability. Can arbitration be governed by state law in the event the FAA is determined to be inapplicable; Or are there provisions for arbitration rules outside of Federal and State law? It is important to draft the arbitration provision carefully so that it will satisfy state law requirements.
Trucking companies need to work with lawyers who keep tabs on changing laws and make certain that their arbitration agreements are state of the art.

Furthermore, in light of recent developments, class-action waivers should be separate from arbitration clauses. Finally, the arbitration provision should make it clear that a trucking companies customers and clients are covered under the arbitration agreement.