The Oklahoma Bar Journal August 2022

within the 90 days after the state of emergency ended. The defendant countered that because the OID bulletin, issued by an Oklahoma agency, was rescinded, the one-year limitation should at most be tolled to the date of rescission rather than the 90 days after the state of emer gency. However, the court denied the defendant’s motion to dismiss, siding with the plaintiff and apply ing the state agency’s previous order to the deadline. 25 State agencies are not the only agencies to provide deadline extensions. Several federal agencies announced deadline extensions as well. For example, on May 4, 2020, the Department of Labor and the Internal Revenue Service issued a joint emergency rule affect ing deadlines for HIPPA, ERISA and COBRA. 26 A federal court in Nebraska recently discussed the federal deadline extension in Anglim v. Sharp Medical Staffing, LLC. 27 The case stems from Ms. Anglim’s termination from requirements, Sharp was statuto rily required to provide notice to Ms. Anglim of continued COBRA coverage. Notice was required to be furnished within 44 days of a qualifying event – i.e., Ms. Anglim’s termination. Sharp did not provide the statutory notice until November 2020, nearly eight months after the qualifying event. However, the court determined the notice was timely due to the extension granted by the joint IRS and DOL order. The order provided that COBRA notice requirements would be disregarded until the earlier of one year after the qualifying event or 60 days after the announced end of the COVID-19 national emergency. 28 Such relief was to be made retroactive to March 1, 2020. 29 Because of the retroactivity of the order, the Anglim court applied the extension in this case and ruled Sharp in March 2020. As an employer subject to COBRA

ruling suggests that Oklahoma courts may give leeway for actions that occurred two weeks after a deadline expired – like in McLenithan – but will find a three month delay unacceptable. Nevertheless, one exception to Oklahoma’s broad interpretation of COVID-19 deadline extensions stands out. Oklahoma courts have explained that certain constitutional mandates may be exempt from deadline extensions or be held to a stricter standard when analyzing the need for an extension. In re State Question No. 805, Initiative Petition No. 421 stands for the premise that statutory duties imposed by the Oklahoma State Constitution are mandatory and can typically be accomplished while taking neces sary safety precautions. 13 Proponents of Initiative Petition No. 349 submit ted signed petitions to the secretary of state as set forth in Article 5, Section 3 of the Oklahoma State Constitution. 14 Accordingly, it is the duty of the secretary of state to file the signed petitions and begin a sig nature counting process. 15 However, the secretary of state expressed concerns that commencing the signature counting process during the pandemic would be impracti cal while protecting the safety of those involved in the process. 16 The court determined the secretary of state could perform the signature counting process in an efficient manner while taking necessary safety precautions, reasoning, “The duties imposed upon the Secretary of State regarding the initiative and referendum is ministerial, and is mandatory.” 17 This premise was affirmed by the Oklahoma Supreme Court in Kiesel v. Rogers, which dealt with nearly identical issues. 18 In both cases, the Oklahoma Supreme Court ordered the constitutionally mandated actions be accomplished without the need of an extension or delay in the required timelines.

FEDERAL COURT DECISIONS Federal courts apply a slightly more complex analysis in their interpretation of state-supplied tolling periods or extensions due to COVID-19. Before turning to the merits of the issue, federal courts must first determine if state law should be applied. When determin- ing what law applies to an issue, federal courts utilize the Erie doc trine. “Under the Erie doctrine, ‘fed eral courts apply substantive state law when adjudicating diversity- jurisdiction claims, but in doing so apply federal procedural law to the proceedings.’” 19 Therefore, federal courts, in determining issues of state-ordered deadline extensions, analyze whether the deadline extension issues are procedural or substantive. Federal courts have varied on the issue thus far. 20 In Texas, the Eastern District Court deter mined the issue to be procedural, applying the state-ordered tolling period to the deadlines at issue. 21 Likewise, Oklahoma federal courts have found the tolling period was procedural when applied to a statute of limitations deadline. 22 In California, however, the federal court found an emergency COVID-19 order, which tolled deadlines from April 27 to May 22, did not apply in federal court because it was “clearly procedural, and the federal, not state, rule applies.” 23 Although the federal courts have produced differing opin ions nationwide, federal courts in Oklahoma have generally applied state law to the deadlines at issue. For instance, the Barraza v. State Farm Fire & Casualty Co. court came to a similar conclusion as the McLenithan court on the same issue in a motion to dismiss. 24 Arguing that the one-year contractual lim itation was extended by the OID bulletin, the plaintiff maintained that his pleading was timely filed

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THE OKLAHOMA BAR JOURNAL