As we all continue to adapt to the impact of COVID-19, not only are we forced to reckon with its impact on our present and our future, but we have to be cognizant of how it interacts with our past. Old laws do not necessarily become any less enforceable with the passage of time.
Politico had an interesting article out over the weekend about how some remote communities across the country are responding to COVID-19. It focused on how old laws are having an impact on the way that a few smaller islands are attempting to respond to COVID-19. Some responses appear to be on more solid legal ground, while other responses have risked violating laws like the Civil Rights Act of 1871. While most businesses and nonprofits do not have to worry about violating this law, if or as situations become more bleak, it is possible that some businesses and nonprofits might seek to assert that rights protected by this law, are being infringed.
Up until relatively recently, the assumption would have been that the national response to national emergencies would be spearheaded by the federal government. Objectively speaking, the current administration fumbled the federal government’s response to this pandemic, requiring state governments to step up and fill the void. The result has been that much of the country is now operating under a patchwork of different state and local laws, meaning cases brought by businesses and nonprofits, asserting an infringement of rights, are likely to be fact-intensive and will vary from situation to situation. A judicial system that is hindered by the realities of COVID-19, overwhelmed by these new cases (in addition to the normal load that already overwhelms the system), means that litigation over such matters could extend well beyond the physical emergency presented by COVID-19.
The most advisable option for businesses and nonprofits that are or might be impacted by closures and national emergency restrictions is probably to talk with an attorney that can review their circumstances and analyze the legal implications of taking different paths. That might lead to the analysis that litigation is more likely to be effective, or it might lead to the determination that attempting to find leeway in contracts (e.g., with force majeure clauses) with suppliers and customers, provides a more desirable outcome. Whatever the analysis might be, the individuals in charge of business decisions at these organizations can begin to make a determination about what path makes the most financial sense for their situation.