Peter A. Steinmeyer, Member of the Firm, and Amy Bharj, Senior Counsel, in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, co-authored an article in Law360, titled “The Future of Force Majeure in Employment Contracts.” (Read the full version – subscription required.)

Following is an excerpt:

As employment lawyers grapple with the impact of COVID-19, they may find themselves grappling with a legal doctrine that many had relegated to post-bar exam memory erasure: the doctrine of force majeure.

Many employers are currently parsing the meaning of that doctrine as used in existing agreements and collective bargaining agreements, while others will soon be pondering whether to include such a clause in future employment or collective bargaining agreements.

What Is a Force Majeure Event?

Black’s Law Dictionary defines “force majeure” as “an event or effect that can be neither anticipated nor controlled.” But what is such an event or effect, and what does it mean that it could neither be anticipated nor controlled?

What about a hurricane if you live in Miami; or a flood if you live along the Mississippi River; or a wildfire if you are otherwise lucky enough to have moved from Chicago to Malibu, California; or COVID-19 — if you live anywhere in the world?

And so a question now facing many employers is whether the COVID-19 pandemic is in fact a force majeure event which excuses an inability to perform a contractual obligation. And the answer is: It depends.

As with most things in the legal world, the devil is in the details, as not all force majeure clauses are created equal. Some contracts may specifically delineate pandemics, epidemics or outbreaks of disease as force majeure events.

Others, however, may contain more general force majeure clauses that refer to acts of God or events that are outside of the parties’ control. No doubt, many parties will end up litigating whether COVID-19 qualifies as a force majeure event under these more general clauses.

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