Maintaining employee and workplace safety are constant responsibilities for all employers.  The federal Occupational Safety and Health Administration (OSHA) along with corollary state agencies set standards for workplace safety that employers must meet and set procedures for employees and employers to report workplace safety concerns and injuries.  Some industries have more onerous requirements than others.  A large food manufacturer, for example, has more stringent workplace safety standards than, say, a retail store in a shopping mall.  However, COVID-19 does not discriminate based on industry or employer size and is proving to be a significant workplace safety issue as our country continues to try and reopen and put employees back to work amid an historic rate of unemployment.  COVID-19 has created a health and economic crisis, responsible for the death of more than 150,000 people in the U.S., with many more becoming sick and needing medical care or hospitalization – all of which has strained our health care system to the breaking point.

Adding to the deleterious effects of COVID-19, employers are now being sued by the families of workers who contend their loved ones died from Covid-19 after contracting it at work.  Workplace injury claims are not new, but COVID-19 and employers’ responses (or lack thereof) are creating an environment ripe for litigation.

The Nature of the Claims

In the U.S. employers are usually shielded from liability for most employee injuries, illnesses, and deaths that result from workplace incidents or injuries thanks to this country’s worker’s compensation system.  Generally, employers pay into a state fund and if an employee gets injured, the employee’s “exclusive remedy” is through the worker’s compensation system and not via direct lawsuit against the employer.  Damages for worker’s compensation claims typically limit payouts to a portion of a worker’s salary, coverage of their medical bills and disability compensation.

Recently however, some large U.S. companies such as Walmart Inc., Safeway Inc., Tyson Foods Inc., and health-care facilities have been sued directly due to COVID-19 related deaths of employees that allegedly contracted the virus at work.  To get around the exclusive remedy of the worker’s compensation system, employees are alleging their employers acted with “gross negligence” or even committed the tort of “wrongful death” because the employers failed to adequately protect workers and put reasonable safety precautions in place to protect their employees from the deadly virus.  Even workers who survived the virus also are suing to have medical bills, future earnings and other damages paid out by their employers.

These early lawsuits center on whether employers adhered to state and federal guidelines for reducing the spread of the virus, which evolved rapidly in March and April, especially regarding mask use, social distancing, and office sanitizing procedures. Employers who failed to follow their state or local guidelines or failed to send sick workers home or  enforce social distancing could be found liable – especially if such failures are found to constitute gross negligence or an intentional act that resulted in the death of the employee.

What Has Been Employers’ Response to the Claims?

In response to these lawsuits, employers are trying to force such claims back into the worker’s compensation system and, failing that approach, are trying to argue that they took reasonable steps to combat the virus, including screening workers for signs of illness, requiring they wear masks, sanitizing workspaces and limiting the number of customers inside stores.  Even if the employer did not comply 100% with their jurisdiction’s COVID-19 recommendations or restrictions, they argue such failure does not constitute recklessness or an intentional act that caused the death of their employees. Some employers also point out that it is impossible to know where or how their workers contracted Covid-19, particularly as it spreads more widely across the country.  Employees are just as likely to have contracted the virus at the grocery store as they are at work and, regardless, there is no way to accurately attribute their disease solely to their workplace.

Congress Proposes Legislation to Limit Employer Liability

A few days ago, Senate Republicans unveiled a bill that would make it harder for employees and their families to sue their employer if they contract COVID-19 while working on the job. The proposed legislation protects private companies, schools, and churches from being held liable for coronavirus infections dating back to December 2019, unless the employer acted with willful misconduct or engaged in grossly negligent behavior.  The bill would cap punitive damages, set a high clear-and-convincing-evidence burden of proof, and raise requirements for personal-injury lawsuits. It would also push such lawsuits to federal courts, which potentially are more favorable to defendants.  At this point, it is unclear how the Democrat-controlled House of Representatives will view this proposed legislation or how the bill might change amid compromise negotiations between the two houses.  Although, House Speaker Pelosi has already voiced her concerns with the Senate’s proposed bill.

Interestingly, even if passed in its current form, the legislation might not completely insulate employers from liability since the bill carves out an exception for gross negligence, which might still allow some COVID-19 lawsuit to proceed.  Some state legislatures may also undertake their own legislation to try and insulate employers from COVID-19 liability.

At this juncture, it is too soon to know how the liability issue will play out, but there is no doubt that employers around the country are watching this issue very closely.  Cases may boil down to a simple question:  “Was the employer grossly negligent as opposed to the employee injury being just an unfortunate outcome?”

What Should Employers Do Now?

With lawsuits having already been filed and the prospects of liability-limiting legislation at either the federal or state level uncertain, employers should take their responsibility to provide a safe working environment very seriously.  COVID-19 presents an unprecedented safety challenge for employers.  A great way to not only protect employees but to avoid potential liability beyond the workers’ compensation system is to follow the recommendations of federal, state, and local government entities regarding workplace protections.  Whether it is providing masks, hand sanitizer, having the workplace cleaned more often, or aggressively keeping sick workers at home and away from others, employers should take all appropriate precautions.  In the end, taking those precautions today may be what ends of saving an employer from a multi-million wrongful death judgement tomorrow.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.