The litigation fallout against employers over COVID-19-related issues is starting to take shape in California – and there has been a definitive uptick in cases alleging the employer is not accommodating physical and/or mental disabilities under California’s version of the Americans with Disabilities Act (ADA). Accommodating employees’ physical and mental COVID-19-related illnesses has proven to be challenging for employers, but you can prevent (and defend against) potential litigation in this area by learning from recent cases.

Prime Example

One such example is the recent lawsuit filed by Jonathan Pantani against his former employer, Instapage, Inc. Pantani alleges that Instapage failed to accommodate him after he suffered an anxiety attack related to COVID-19.

Toward the end of November 2020, Pantani requested three accommodations that were allegedly suggested by his treating medical health professional: (1) extended time off around Thanksgiving; (2) time off work to meet with a therapist; and (3) “set” working hours with limited responsibilities during non-working hours and on weekends. Pantani alleges his requests for accommodation were not properly considered and that his employer ultimately terminated him for requesting the accommodations. Pantani alleges that Instapage advised him he was being terminated because of his “lack of alignment” and “general unhappiness at work.”

While the outcome and veracity of the allegations are unknown, Pantani’s allegations of his employer failing to accommodate a mental health condition and terminating him on account of his condition are fairly common. These types of cases are a reminder that you need to identify those employees who have physical or mental condition that could trigger protection under the ADA. Anxiety and mental distress created by COVID-19 fears clearly may trigger obligations under the ADA. 

What Can You Do?

You may be able to avoid these types of claims by doing several things. First, you need to be able to quickly recognize that the ADA may provide protection to certain employees. Once the ADA issue is flagged, you will need to engage in a dialogue with the employee – an interactive process – and determine what reasonable accommodations can be provided to the employee and make a record of the same.

In those instances when you are hesitant to provide the requested accommodation, you should document why it is an undue burden to provide the accommodation and attempt to offer alternative reasonable accommodations. For example, for an employee who is unable to work on the worksite but the essential functions of the job require being on site, you may offer a temporary leave of absence even if there is no other statutory obligation to do so.

Finally, to avoid allegations that any terminations you carry out were a result of either the employee’s mental or physical condition or in retaliation for seeking accommodations, you need to be able to articulate a legitimate, non-discriminatory, basis for the termination. Highly subjective reasons (e.g. bad attitude) for a termination make that hurdle higher to get over.

“We continue to see rapid digitalization across all industry sectors, in addition to rising expectations and accountability in relation to ESG matters, empowerment of employee and customer voices, and growing enforcement efforts and coordination between global authorities,” said Jennifer Semko, a partner in Baker McKenzie’s Litigation & Government Enforcement Practice based in Washington, DC. “These issues have only been accelerated by COVID-19, with some organizations beginning to uncover vulnerabilities arising from their response to disruption, and governments under pressure to fill holes in domestic finances. All of these factors are combining to create significant litigation risk for companies going forward as we emerge from the pandemic.”

Distinct Industry Divergence

While the new research uncovered dominant and universal sources of litigation, it also revealed some notable differences across sectors – offering an illustration of commercial challenges by industry.

For example, organizations operating in the Industrial, Manufacturing and Transportation (IMT) and Energy, Mining & Infrastructure (EMI) sectors report that environmental and commercial matters are their greatest litigation threats — reflecting ongoing scrutiny of ESG performance and the prevalence of activist stakeholders, as well as supply chain issues and contractual disputes arising from COVID-19 disruption. (Approximately 73 percent of leaders in the IMT space identify environmental issues as their company’s greatest litigation risk, while 85 percent of EMI leaders say the same.)

“As ESG principles become enshrined in laws, they will become the subjects of the compliance obligations of the company and the directors’ duties of oversight,” said Peter Tomczak, Chair of Baker McKenzie’s North America Litigation & Government Enforcement Practice. “At the same time, when companies focus on fulfilling mandatory and voluntary standards in relation to ESG, there is growing recognition that those organizations may also be creating long-term value for investors. Long-term company value and sustainability are often intertwined.”

Likewise, cybersecurity concerns are most top of mind for leaders in the Financial Institutions (FI) and Technology, Media and Telecommunications (TMT) industries, with 83 percent of FI respondents noting it as their greatest concern, and 92 percent of TMT leaders saying the same.

“Litigation related to data and cybersecurity is rising considerably, as digital transformation expands the technology footprint of companies,” said Paul Glass, a Partner in Baker McKenzie’s Data Privacy practice based in London. “The more complex the tech stack with layers of providers that have a role in hosting, sharing and organizing confidential and personal data the greater the likelihood of mismanagement and breaches. Data controllers are struggling to manage this risk in a meaningful way and are finding it is not possible to simply outsource liability.”

“In the UAE and across the MENA region, companies have quickly adapted to the pandemic and implemented new processes and procedures to ensure business continuity and optimum Work-from-Anywhere initiatives,” said Andrew Mackenzie, Partner and Head of the International Arbitration, Construction and Offshore Litigation practice at Baker McKenzie Habib Al Mulla based in Dubai. “Robust policies and procedures need to be put in place, as they relate to both ESG and cybersecurity. This will safeguard the integrity and security of both employees and their organizations, while critically ensuring we mitigate the cost to our environment.”

Tax and Employment Risks Loom Large  

Certain litigation risks remain heightened across all sectors. For example, though just 18 percent of respondents listed employment as their greatest litigation risk, it remains a key area of vulnerability for companies to prioritize regardless of industry or market, said Paul Evans, a partner in Baker McKenzie’s Employment & Compensation Practice in New York.

“The impact of COVID-19 on work and working life has created an environment that is particularly ripe for claims of discrimination, retaliation, health and safety and the like,” Paul said. “In a very short period of time, employers were forced to close operations, reimagine how work gets done, right-size workforces to deal with changing demands, safely reopen workplaces and navigate public health issues involving testing and vaccines. The fast pace at which decisions have been and will continue to be made, as well as their unprecedented nature, has and will continue to lead to litigation across the globe.”

Likewise, tax disputes are also on the rise in a COVID-19 environment, while more countries take regulatory measures around digital tax and transfer pricing, combined with the fact that tax regimes have a significant increase in the amount of information available to them due to an increase in reporting obligations.

“COVID-19 is accelerating these challenges – creating an economic crisis and budget shortfalls, which create greater need for tax revenue – as well as giving rise to new ones,” said Antonia Azpeitia, a Partner in Baker McKenzie’s Tax Practice based in Madrid. “Understanding the impact on intra-group supply chain and pricing policies, which jurisdictions should absorb extraordinary losses or profits generated by the pandemic and how to justify these decisions to tax agencies worldwide will be critical.”

Preparedness and Risk by Geography 

The research also highlighted regional variance, finding that organizations in the UK were the top performers in their litigation preparedness, with Mexico and Singapore-based companies scoring the lowest in readiness.

In the United States, executives identified commercial and cybersecurity as their top area of litigation risk (52 percent listed commercial as top concern; 46 percent listed cybersecurity), while 60 percent of respondents in the UK named data protection as the chief concern, in addition to cybersecurity (62 percent). In Japan and Hong Kong, tax concerns are of greatest priority, with 52 percent of respondents in both markets listing it as their top litigation concern. Commercial litigation risk was identified as a point of concern across jurisdictions, particularly in Singapore where 52 percent of business leaders stated it was a top priority.

“As the production center of the world, many supply chains originate in the Asia Pacific region, but legal infrastructure in some of these markets is often not best equipped to manage the kind of high-value commercial disputes we have seen arising from COVID-19,” said Nandakumar Ponniya, a Partner at Baker McKenzie based in Singapore and Head of Dispute Resolution in Asia Pacific.

© Press Release 2021

The Delhi High Court on Monday came down on several petitioners for filing “publicity interest litigations” on various issues, like regulating news reporting of COVID issues and investigating the alleged misuse of the Lt Governor-Chief Minister Relief Fund, saying these were filed without any homework and imposed costs on some of them. A bench of Chief Justice D N Patel and Justice Jasmeet Singh said some of these pleas appeared to be filed on ideas which came to the petitioners’ minds while having tea or walking on the road.

“Chai peete peete idea aaya toh socha file karo PIL (while having tea you had an idea and decided to file a PIL). That is not how it is done. You may have an idea while walking on the road.

“You have to do some homework and then file the petition,” the bench said while dismissing with cost of Rs 50,000 a PIL seeking a court-monitored investigation into the alleged siphoning off of amounts donated by the public in the Lieutenant Governor-Chief Minister Relief Fund for COVID-19 relief.

The court said the plea was filed based on someone’s tweet without trying to find out under RTI whether there has been any misuse of the funds.

It said the petitioner made allegations that monies from it were used in advertisements by the Delhi government.

Delhi government standing counsel Santosh K Tripathi told the court that not a penny can be spent from that fund on advertisements.

The court said it appeared to be a motivated plea and directed that the costs imposed be deposited in favour of the legal services authority within four weeks.

Another plea, by an organisation founded by Delhi University students in 2014, had sought directions to the Delhi government to take an undertaking from patients, who want plasma, that they will donate plasma once they recover from COVID-19 and that too within 14 to 28 days after testing negative.

The court dismissed the plea by Think Act Rise Foundation with costs of Rs 10,000 saying it cannot direct the Delhi government to draft a policy making it compulsory for patients to donate plasma once they recover from COVID-19.

The bench said the plea appeared to be a publicity interest litigation.

Similar observation was made by the court while dismissing another PIL which wanted framing of guidelines with regard to airing of news of sensitive nature, like reporting of mass scale deaths, people suffering, etc during the prevailing pandemic due to non-availability of resources.

The petitioner, advocate Lalit Valecha, had contended that such news reports lead to “spreading negativity, sense of insecurity towards life, alarm, injury, harm, suffering, damage, etc.”

Rubbishing the contention, the bench said news is both negative and positive and the petitioner was not aware of the correct facts.

The court said it was a “wrong notion” in the petitioner’s mind that reporting of deaths during the COVID-19 pandemic was negative news.

“It is a negative idea in the petitioner’s mind,” the bench said and added that as long as the media was reporting correct facts, there cannot be any restrictions on them.

Bill and Melinda Gates have announced they are to divorce after 27 years of marriage, saying they “no longer believe we can grow together as a couple”.

The Microsoft co-founder turned philanthropist and his wife have built up a combined $124bn (£89bn) fortune, making them among the five richest couples in the world.

“After a great deal of thought and a lot of work on our relationship, we have made the decision to end our marriage,” the pair said in a joint statement posted on Twitter on Monday.

The couple, who jointly run the Bill and Melinda Gates Foundation, a huge funder of global health and disease prevention initiatives, including the fight against coronavirus, said they would continue to run the foundation together.

“We continue to share a belief in that mission and will continue our work together at the foundation, but we no longer believe we can grow together as a couple in this next phase of our lives. We ask for space and privacy for our family as we begin to navigate this new life,” they said.

The pair “will continue to work together to shape and approve foundation strategies, advocate for the foundation’s issues and set the organization’s overall direction,” the Gates Foundation said in a statement.

The couple have three children, Jennifer, 25, Rory, 21, and Phoebe, 18.

Jennifer Gates, writing on Instagram on Monday, said it had “been a challenging stretch of time for our whole family”.

“Thank you for understanding our desire for privacy while we navigate the next phase of our lives,” she wrote.

The surprise announcement comes less than two weeks after the pair appeared virtually at an event for healthcare workers fighting the pandemic.

Melinda, 56, has in the past said their marriage has been “incredibly hard”, saying that Bill, 65, regularly works 16-hour days and can find it hard to make time for the family.

“Believe me, I can remember some days that were so incredibly hard in our marriage where you thought, ‘Can I do this?’” she said in an interview with the Sunday Times in 2019 to mark their 25th anniversary.

Bill, who co-founded Microsoft in 1975, was already a billionaire when the pair got married in 1994. He met Melinda in 1987, when she joined the company. He was 31.

Melinda said Bill spent weeks debating whether or not they should marry, and even made a list of pros and cons for marriage on a whiteboard.

“When he was having trouble making the decision about getting married, he was incredibly clear that it was not about me, it was about, ‘Can I get the balance right between work and family life?’” she said.

Bill is the world’s fourth-richest person with his estimated $124bn (£90bn) fortune, but he would have been even more vastly wealthy if he had not committed to giving away at least half of his fortune before he dies.

Since 1994, he has donated at least $40bn to the Bill and Melinda Gates Foundation, which funds IT education in the US and healthcare and poverty initiatives around the globe – including funding large-scale projects tackling HIV and malaria. Their foundation has more than $51bn in assets, according to a tax filing.

In 2010 the couple and Warren Buffett created the Giving Pledge, a promise to give at least half of their wealth to charity, and called on other billionaires to join them. More than 170 of the world’s richest people, including Mark Zuckerberg, Mike Bloomberg and George Lucas, have so far signed up.

Bill said the pledge was “about building on a wonderful tradition of philanthropy that will ultimately help the world become a much better place”.

He told ITV’s This Morning in 2016 that giving his children huge sums would not be “a favour”. “It distorts anything they might do, creating their own path,” he said. “This money is dedicated to helping the poorest. They know that, they are proud of that, they go on trips with us to see the work that’s being done.”

The Gates Foundation was one of the earliest and biggest funders of research into vaccines and treatments for coronavirus. Bill has said he is prepared to spend billions on preventing the spread of the virus. “It’ll be a few billion dollars we’ll waste on manufacturing for the constructs that don’t get picked because something else is better,” he said. “But a few billion in this, the situation we’re in, where there’s trillions of dollars … being lost economically, it is worth it.”

At least one critic of billionaire benefactors cited the Gates’ split as a cautionary tale in the wisdom of concentrating so much sway over global humanitarian issues under the control of super-wealthy individuals.

“The Gates divorce will do more than upend a family’s life. It will ramify into the worlds of business, education, public health, civil society, philanthropy, and beyond,” Anand Giridharadas, author of the book Winners Take All told Reuters. “That is because our society has made the colossal error of allowing wealth to purchase the chance to make quasi-governmental decisions as a private citizen.”

It is the second divorce among the super-rich in recent years, following the Amazon chief executive Jeff Bezos’s 2019 separation from his wife, MacKenzie Scott.

Their divorce turned Scott into the world’s fourth-richest woman, with a $38bn fortune. It was by some distance the largest divorce settlement in history. The previous record was $2.5bn paid to Jocelyn Wildenstein when she divorced the art dealer Alec Wildenstein in 1999.

Scott has promised to give away all of her fortune, and gave away almost $6bn last year, thought to be the largest sum ever given in a single year. Bezos is the only member of the five richest people in the US not to have signed up to the Giving Pledge initiative to give away at least half of his fortune.

Reuters contributed reporting

At some point in life, statistically, a large percentage of Americans are going to have to endure some form of legal matters with family or business partners. The idea of having to go through any type of proceeding like this makes some people swear off marriage or any type of risk-taking in their lives that may result in a legal dispute in front of a court of law. What if I told you that you could resolve your legal dispute in the matter of six to 12 months, while saving money and having the opinion of an attorney, mental health professional and neutral financial expert to help navigate this rough terrain?

Though the process of divorce, disputes about children and more are never going to be enjoyable, using the collaborative law process can provide a smoother, more efficient and even gentler when approaching these tough life events. Collaborative law is just that — bringing the two parties within a legal dispute together to collaborate on the best practices of how to move forward with the best interest of both involved — and if there are children involved, putting their needs first.

This is how collaborative law works. First, each party picks their own attorney who preferably is collaboratively trained and even better if they are accredited, like I am, to represent them in the matter. After the attorneys are chosen, the attorneys assist them with enlisting the neutrals, the settlement facilitator (who has a mental health background) and a financial neutral professional.

Both of these neutral parties join the collaborative process as part of the team. The team consists of the parties themselves, their respective attorneys, the mental health professional and financial expert who act as neutral facilitators within the group. The approach of neutrality allows for transparency on both sides by each expert analyzing the best case outcome in their own respective fields. The goal is to find a resolution that is equitable.

The settlement facilitator is in charge of keeping the process on track. We set as many team meetings as necessary to get to a resolution. Team meetings are limited to two hours to be sure neither party fatigues and becomes unable to effectively evaluate options for settlement. The facilitator ensures we stick to the agenda that has been agreed upon in advance. If children are involved, the settlement facilitator helps the couple draft a time sharing arrangement, assists in addressing the children’s developmental needs, educational needs and more.

During the process, the team helps the parties grow and evolve during a difficult transition. We work on communication skills and co-parenting skills if children are involved. The process does not provide therapy, but it is therapeutic.

The financial expert helps to educate both parties about the financial aspects of the marriage and provide different options for distributing them. The parties must agree to be transparent in this part of the process. Hiding the ball is not permitted.

One of the best parts of the process is that it allows dispute resolution to happen outside of the courtroom — therefore any issues can be resolved before going on record in a court of law. Everything about the couple’s lives can remain confidential and out of sight from nosey neighbors and/or prospective employers, employees and colleagues. During litigation, everything filed becomes a public record.

After going on record, couples are subject to judgement of what is said in court by their peers, and maybe even later down the line their children. This also means that if either party has a substance use issue, a well-to-do business or anything that they would like to keep confidential, it will not go on public record if not mentioned in a court of law. Rather than a smear campaign, both parties will be able to be cordial to continue their business or co-parent their children after going through this laid-back approach to the typically strained and difficult law proceeding.

Overall, the process provides a great alternative to a centuries-old approach to one of the hardest and most traumatic things that someone can experience in their lives.

By preserving relationships, by helping find solutions to difficult issues, by assisting in option-building and coming to an equitable resolution — it helps people get over resentment and move on with their lives.

It’s exempted from the probate process; courts don’t get involved in its execution

Topics
Trusts | Will

With stories of loss of life due to the pandemic coming in every day, those who have not given any thought to estate planning should do so at the earliest to secure their family’s future. A Will works well for smaller families with simpler inheritance objectives. It is also cost-effective.

However, in many instances, the authenticity of the Will gets challenged, resulting in lengthy court cases. This can be avoided by setting up a trust. Moiz Rafique, managing partner, Privy Legal Service LLP, said, “There is no court involvement in a trust, which is why I would …