By Brian Dowling

Law360 (March 24, 2020, 1:49 PM EDT ) Uber and Lyft drivers sick with what they fear could be COVID-19 say they have continued to pick up riders because they have no other way to pay their bills, according to affidavits filed late Monday in twin federal suits seeking employment status and sick time for the gig workers.

While driving for one of the ride-hailing companies, Martin El Koussa and Vladimir Leonidas each picked up attendees at the late-February Biogen conference where the novel coronavirus spread, as well as travelers from Boston Logan International Airport, the drivers said.

The affidavits support an urgent injunction request to U.S. District Judge Indira Talwani asking the court to grant employee status to the drivers — the aim of the class action complaints — and force the companies to give sick pay.

"I am concerned that I could be passing the coronavirus on to my riders, but I do not feel like I have a choice because I need the money," Leonidas said in his affidavit.

Leonidas, who counts Uber and Lyft as his only source of income, said he started to have a "stuffy nose, sore throat, headaches, body aches, and a lot of phlegm" three weeks ago and went to the emergency room but couldn't get tested. He treated himself with over-the-counter cold and flu medicine and felt better, but still has a sore throat.

He said he drove attendees from the Biogen conference, as well as people from the University of Massachusetts Boston and travelers into Logan Airport.

Although he said he cleans his car often and offers hand sanitizer to riders, Leonidas fears losing access to the ride-hailing app if he cancels trips from locations like the airport, according to the affidavit.

"I do not want to pick up riders who were either coming from or going to risky locations, such as airports or college campuses, while the coronavirus is spreading across the state, but I am afraid to cancel rides because there are not very many ride requests right now and I need the money," he wrote.

Another driver, El Koussa, who also works for Uber and Lyft, said he hasn't been feeling well for the past two weeks but kept driving during the first week of his illness.

"I was concerned about infecting my riders, but I felt I had no choice but to keep driving because I do not have any other way to make money," he said. "I live by myself, so there is no one else who can help me pay for my living expenses if I do not work."

Both drivers said they would have stayed home if they had sick pay.

Now more than ever, the drivers said, the court should intervene to force Uber and Lyft to provide sick time as required by the plaintiffs' reading of Massachusetts law.

Both companies are providing cleaning products to drivers, encouraging sick people to stay home and banning drivers and riders who test positive. Uber and Lyft both say they will provide funds to drivers who are diagnosed with COVID-19 or quarantined by a public health agency. 

But the drivers argue the risks of spreading the contagion are too high for the court not to force the companies to offer sick leave, saying there's "no serious argument that helping prevent the spread of a global pandemic is outweighed by the cost of coming into compliance."

The lawsuit, filed in September 2019 by Lyft driver Melody Cunningham, claims the company exerts significant control over her and other drivers, including requiring background checks, setting and changing the rate of pay without notice and firing them based on poor customer ratings. Despite wielding this power over its drivers, Lyft has incorrectly maintained they are independent contractors rather than employees, Cunningham argued.

Last week, Judge Talwani shot down a request for an injunction seeking employee status that the drivers had filed at the outset of the case in 2019, saying they failed to prove they'd be irreparably harmed without it.

The drivers' attorney, Shannon Liss-Riordan of Lichten & Liss-Riordan PC, said she hopes the motions for injunctions are granted quickly. She noted similar federal cases underway in California's Northern District were put on expedited briefing tracks.

"Uber and Lyft have both been flouting Massachusetts and California law for years," she told Law360 on Tuesday. Now their refusal to acknowledge their drivers as employees, thus denying them state-mandated sick pay, is only further fueling this global pandemic crisis we are facing."

Lyft blasted the motion in a statement: "Attempts by opportunistic lawyers to capitalize on this national emergency are callous and insidious politics."

Forcing ride-hailing companies to treat drivers as employees "would result in the widespread elimination of work for hundreds of thousands and the immediate interruption of essential services for vulnerable populations," Lyft said in a statement. "It will hurt drivers and at-risk communities at a time when they need our services most."

Representatives for Uber were not immediately available for comment Tuesday.

The Uber and Lyft drivers are represented by Shannon Liss-Riordan, Adelaide H. Pagano and Anne Kramer of Lichten & Liss-Riordan PC.

Uber and its CEO Dara Kosrowshahi are represented by Joshua S. Lipshutz, Theodore J. Boutrous, Theane Evangelis, Michele L. Maryott and Heather Richardson of Gibson Dunn & Crutcher LLP.

Lyft, its CEO Logan Green and company co-founder and President John Zimmer are represented by Jeffrey Y. Wu, Rohit K. Singla, Justin Raphael, and Adele M. El-Khouri of Munger Tolles & Olson LLP, as well as James D. Smeallie, Andrew E. Silvia, David J. Santeusanio and Michael T. Maroney of Holland & Knight LLP.

The cases are Capriole v. Uber Technologies Inc. et al., case number 1:19-cv-11941, and Cunningham v. Lyft Inc. et al., case number 1:19-cv-11974, in the U.S. District Court for the District of Massachusetts.

--Editing by Alyssa Miller.

Update: This story has been updated with a comment from Lyft.

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