Businesses are starting to reopen, but are they also opening themselves up to liability? As employers begin to welcome employees back there is widespread concern that employers may face lawsuits if employees are exposed to COVID-19 in the workplace.
While companies are primarily concerned with providing a safe environment for customers and employees, it is unclear what that means in the context of a contagious virus that seems to be everywhere. Employers can protect themselves against claims of “failure to protect their workers from coronavirus exposure” by monitoring and implementing safety measures recommended by the U.S. Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and state and local authorities.
In addition to following government mandates, measures that employers should consider taking include these:
- cleaning and sterilizing of surfaces frequently
- providing adequate personal protective equipment for employees
- installing barriers, such as sneeze guards and social distancing markers, at interaction points
- enforcing social distancing guidelines
- encouraging workplace flexibility to allow for remote working
- establishing a protocol for employees to report COVID-19 symptoms as well as a protocol for response and isolation for suspected cases
Even with these safeguards in place, businesses are still in the difficult position of deciding how to keep their business running while protecting customers and employees and warding off potential lawsuits.
Taking the affirmative steps outlined above may reduce potential liability by providing evidence that the employer engaged in a good faith effort to meet its reasonable duty of care.
1. Coronavirus Workers’ Compensation Claims
Workers’ compensation laws may significantly limit claims relating to coronavirus for employers. However, because it is an open question for the courts whether COVID-19 will be covered by workers’ compensation statutes, employers must be alert for specific guidance or state legislation with respect to the availability of workers’ compensation for employees who contract COVID-19.
Generally, workers’ compensation laws provide an exclusive remedy for employees injured in the course of their job duties. This means that if COVID-19 is considered an occupational injury or illness, workers’ compensation statutes should bar tort claims for monetary damages (A tort is a wrongful act under civil law). Exposure to communicable diseases, such as MRSA, HIV, hepatitis, and dysentery, has generally been a claim for which a workers’ compensation remedy is available.
However, workers’ compensation statutes vary state by state, and employers should be mindful of exceptions. In some states, like Washington, “ordinary diseases of life,” such as the common cold or the flu, are excluded from workers’ compensation. But, if the employee can show that the employer intentionally caused an injury or fraudulently concealed injuries, then they may sue under a tort theory.
2. Special Coverage for Essential Business Workers
Where an occupation necessarily includes exposure to COVID-19, such as first responders, grocery store employees, and healthcare workers, some states have proposed or enacted legislation that would include coverage for COVID-19 in workers compensation. In Illinois, where the family of a Walmart employee filed a wrongful death lawsuit after he died from complications of COVID-19, the state became the first to change its workers’ compensation law to presume that the COVID-19 infection occurred on the job for businesses that were deemed essential under the stay-at-home order, such as healthcare providers, banks, and grocery stores. The state withdrew the change after business groups, concerned about the cost of claims, sued. Some foresee compromise legislation that would provide workers’ compensation coverage for first responders but not for all essential businesses.
3. Legislative Outlook and Next Steps for Employers
As non-essential businesses open, the concern about claims from sickened employees will intensify, and legislation may follow at the federal and state levels. The U.S. Chamber Institute of Legal Reform has proposed a safe harbor for companies that follow CDC guidelines and state and local guidelines, while Senate Majority Leader Mitch McConnell has said he wants to include a liability shield for employers in the next coronavirus relief bill.
The best steps you can take to limit potential liability are to follow the precautions outlined in this article and by federal, state, and local government agencies. For more information on how the coronavirus pandemic is affecting the workplace and creating legal and compliance issues for employers, keep reading our blog.