As the toll of COVID-19 continues to increase, liability issues regarding safety at work is a reality businesses must face. Employers must ask what their potential liabilities are if an employee contracts COVID-19 at work. Below we discuss potential liabilities and how to mitigate the risks.

Workers’ Compensation

When an employee is injured at work, a claim is filed through workers’ compensation. Generally, workers’ compensation is the exclusive remedy for employees who are injured or contract an illness or disease at work. Normally, to obtain workers compensation due to an illness or disease, an employee must show:

1. They contracted the disease as a result of and in the course of employment; and
2. The disease causes temporary or permanent incapacity.

This is a tough standard.  An employee must show by a preponderance of the evidence that their disease is causally related to their employment. Further, an employer is only liable if the disease is “due to the nature of employment in which hazards of the occupational disease exist” or the disease is known to result from an exposure that is attributable to the specific type of employment. 

Due to the highly infectious nature of COVID-19, some states like California have recently relaxed the standard. California has allowed a time-limited rebuttable presumption for accessing workers’ compensation benefits.  This presumption applies to workers who must work outside of their homes during the Stay-At-Home order. 

For places that have not relaxed their workers’ compensation laws, or where there is no statutory presumption of compensability, employees may not be covered. In these circumstances, employers will have no protection from the workers’ compensation exclusivity bar and may be sued in civil courts for negligence. It is important to note that even if workers’ compensation is available, liability may still occur in civil court for any intentional or willful conduct of an employer. 

Civil Lawsuits

As outlined above, most work injury claims go through workers’ compensation. However, if an employer intentionally or willfully exposes an employee to COVID-19, the employee will have a claim for tort liability. As COVID-19 cases continue to rise, so will the death toll.  Consequently, employers will face an increasing number of employees (or their families) who will file suit for “serious and willful negligence” or “wrongful death”. 

A few such cases have already been filed. One against Walmart in Illinois. In Toney Evans v. Walmart, Inc., the estate of a deceased employee is alleging negligence and willful and wanton misconduct on the part of Walmart, for failing to provide sufficient protection despite knowing that employees were exhibiting possible symptoms of COVID-19 and failed to follow guidelines from the CDC to prevent the spread of the disease. Another is Rural Community Workers Alliance v. Smithfield Foods, where a class action was filed on behalf of employees at a meatpacking plant who were exposed to COVID-19. The lawsuit claims a breach of duty to provide a safe workplace.

In addition to tort actions, employers must be mindful of potential retaliation claims. Employers may have issues with workers refusing to work due to fear of unsafe work conditions and contracting COVID-19. Employers must use caution when taking any adverse action against employees, including termination due to COVID-19. If an employer terminates an employee for refusing to come to work based on their fears of COVID-19, they may have increased their risk of a retaliation claim. An employee can claim unlawful retaliation for engaging in the protected activity of refusing to work in unsafe work conditions. These cases will be fact-specific.  If the employee’s specific workplace shows they could have had a reasonable belief that reporting to work could cause serious injury or death from COVID-19, the employee’s refusal to work could be deemed a protected activity. 

Mitigating Risk by Following Federal and State Guidelines

Employers need to take reasonable safety measures, including following federal and state guidelines and regulations, for COVID-19. Doing so will not only create a safer work environment but also reduce liability exposure.  

The Occupational Safety and Health Administration (“OSHA”) has published general guidance on “Preparing Workplaces for COVID-19,” and it also published a poster containing 10 steps to reduce workplace exposure. The Center for Disease Control (“CDC”) has published interim guidance for all employers and provides best practices to plan for and respond to COVID 19. The CDC also published interim guidance specifically for employers providing “essential” services, which outlines best practices when an asymptomatic employee suspects exposure to COVID-19. Employers should follow these guidelines as courts may interpret them to determine the “standard of care” in civil court actions.

Any employer who fails to comply with OSHA, EEOC, CDC, and state-level requirements will not only expose themselves to potential liability as outlined above, but can expose a business to administrative enforcement actions by OSHA, the EEOC, or related local and state bodies.

Conclusion

The importance of workplace safety cannot be overstated. To mitigate potential liability, employers must take affirmative steps to not only make employees safe but to make employees feel safe while at work. To do this, employers should provide the safest possible work environment based on the most current information.  Employers should also openly communicate with their employees, so they feel safe coming to work.

If your business needs assistance evaluating your risks during COVID-19, please contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.