Is an employer responsible for covid-19?

Businesses who are reopening during times of reduced Covid-19 restrictions need to be aware of their potential liability to customers, employees, and anyone else at their workplaces. Employers often ask if they are responsible for covid-19.  A number of Covid-19 lawsuit against employer related personal injury claims have already been filed in U.S. courts.[1] Many experts believe that the litigious culture of the U.S. might threaten the ability of the economy to recover.[2] The complaints of the plaintiffs are that the defendants did not provide a proper warning of a coronavirus outbreak, [3]  and they did not take reasonable steps to stop the spread of the virus.[4]

Some of the plaintiffs in these personal injury claims have said that by not taking sufficient precautions, the business creates a public nuisance.[5] Due to the rise of personal injury lawsuits, nursing homes have sought immunity from Covid-related negligence claims by way of an executive order.[6] Industries that are at greater risk of Covid outbreaks due to the nature of their business have called for industry-specific liability protections.[7], [8]

This article will discuss the factors which shape the liability of a defendant in a Covid-19 personal injury claim.

Covid-19 Employer Negligence: Standard of Care

A crucial part of a personal injury claim is to establish that the defendant owed the plaintiff a duty of care and that they failed in that duty. By law, businesses owe a reasonable duty of care to their customers, employees, and others in their workplace. This duty of care is to prevent or minimize the risk of reasonably foreseeable harm. Under this duty, employers must correct known hazards and warn of dangerous conditions.

The courts often rule in favor of the person who has the disease must take the necessary steps to prevent its spread.[9] Depending on the circumstances of the danger of exposing others and the nature of the disease, necessary steps may look different.[10] This interpretation of the necessary steps was due to a case where the owner-occupier of a two-family residence failed to warn of their tuberculosis diagnosis and avoid close contact with the other family in the residence. Similarly, those who have knowledge of a sick person’s condition and a relationship with them that puts them in a position to avoid the spread of disease have a duty of care. The courts have ruled previously that a doctor whose patient received a blood transfusion contaminated with H.I.V. owes a duty of care to the patient and their future sexual partners to properly inform the patient of the risk of transmitting H.I.V. to other people.[11]

Interpreting necessary steps for Covid-19 is challenging as it is a new illness subject to changing guidelines and relies on the availability of resources. For example, while most people would agree, it is reasonable to ask employees displaying symptoms to stay home, should employers ask employees who came into contact with the symptomatic employee to stay home? If the employee has not been tested for Covid-19 and has recovered for an illness that may be Covid-19 or could be the common cold, how long should the employer ask them to stay home? Are businesses obligated to take steps to identify employees and customers who may be sick, such as temperature checks?[12] Covid-19 manifests with similar symptoms to other common illnesses, so how certain would an employer have to be that their employee has Covid-19 before they warn customers and other employees about the risk of infection? These questions are difficult to answer in light of the difficulty of obtaining accurate testing.

The C.D.C. [13], [14] and [15] O.S.H.A. have released Covid-19 guidelines for employers and courts have been using the guidelines as the standard for duty of care.[16] Therefore, employers should stay up to date with federal and state agency guidelines and enact the necessary changes to stay compliant. This will benefit an employer facing a personal injury claim as they can prove they took reasonable steps to perform their duty of care based on the information they had. If an employer does not comply with C.D.C. and O.S.H.A. guidelines, the plaintiff will use these guidelines as proof of the breach of duty of care.[17] However, employers should not believe they are entirely safe from personal injury claims because they followed these guidelines. They are by nature, general and certain industries may need to take further action to ensure their workplaces are safe due to the nature of their business. Courts will not rule an entire industry is negligent without significant cause,[18] therefore, employers need to ensure they are adopting similar measures to other businesses in their industry.

The standard of care will also likely change as scientists learn more about the virus and how it is transmitted. As more is discovered about Covid-19, the definitions of reasonable measures may change.

Causation

Where most Covid-19 personal injury plaintiffs face trouble is their burden to prove that the duty of care caused them to contract coronavirus. Due to the long incubation period and that it is highly contagious, it may be difficult to establish that the plaintiff caught Covid-19 in the workplace. A nurse’s estate filed a lawsuit claiming that the nurse caught H1N1 after her boss, contrary to C.D.C. guidelines, asked her to work with potential H1N1 patients without a mask. The court ruled that because there was no evidence that one of the patients did in fact, have H1N1; causation was insufficient.[19] Similarly, in San Joaquin Valley, CA, the evidence pointed to a medical possibility that the fungus came from the soil. However, due to the multitude of reasons behind soil disturbance and the large percentage of the population had a positive test for exposure, the court ruled there was insufficient causation.[20]

With Covid-19, causation is difficult to prove aside from cases in locations where residents have little contact with the outside world. In the future, when the number of cases is lower and therefore, easier to trace, this may change.

Workers’ Compensation Preemption Covid

Most workplace injuries are provided for with workers’ compensation,[21] however, each state has its own guidelines for eligibility and benefits. In California, if the employee’s injury is aggravated because the employer fraudulently concealed the existence of the injury and that it is related to the workplace, workers’ compensation exclusivity does not apply.[22]

Workers’ compensation is usually only applicable to infectious diseases if the job causes employees to be at greater risk of catching it in comparison with the general public.[23] Therefore, healthcare workers treating infected patients would be able to claim workers’ compensation. However, with Covid-19, a worker whose job requires them to interact regularly with the public may not be covered because technically, the public is the risk factor, not the workplace. Some states have released Covid-19 specific amendments to workers’ compensation regulations to ensure essential workers are eligible for benefits.[24]

Final Thoughts

The volume of Covid-19 personal injury lawsuits is expected to grow as businesses reopen and put their employees at risk of infection. There is much uncertainty over how these claims will be handled due to the lack of precedent and information about the nature of the disease. There is also a lot of uncertainty over how much workers’ compensation and other employer insurance programs will absorb the cost of such lawsuits. Until more information is available, employers should do their diligence in protecting people in their workplaces through reasonable actions. At the very least, employers should follow state and federal health agency guidelines and look at industry best practices for preventing infection.

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[1] Daniel Wiessner, Estate of Walmart worker who died from COVID-19 sues for wrongful death, Reuters, Apr. 7, 2020.

[2] Editorial Board, Stopping a Lawsuit Epidemic, Wall St. J., Apr. 23, 2020.

[3] Tim Reid, Seattle-area nursing home hit with wrongful death lawsuit over coronavirus death, Reuters, Apr. 10, 2020.

[4] See Wiessner, supra note 1.

[5] Noam Scheiber and Michael Corkery, Smithfield Meat Plant Conditions Assailed as Public Nuisance,  N.Y. Times, Apr. 24, 2020.

[6] Marau Dolan, Harriet Ryan, and Anita Chabria, Nursing homes want to be held harmless for death toll.  Here’s why Newsom may help them, L.A. Times, Apr. 23, 2020.

[7] Evan Greenberg, What Won’t Cure Corona: Lawsuits, Wall St. J., Apr. 21, 2020.

[8] Natalie Andrews, Mitch McConnell Wants to Shield Companies From Liability in Coronavirus-Related Suits, Wall St. J., Apr. 28, 2020.

[9] Mussivand v. David, 544 N.E.2d 265, 269 (Ohio 1989) (collecting cases).

[10] Earle v. Kuklo, 98 A.2d 107, 109 (N.J. Super. Ct. App. Div. 1953) (quoting 25 Am. Jur., Health, § 45).

[11] Reisner v. Regents of University of Cal., 31 Cal. App. 4th 1195, 1198-99 (1995).

[12] Compare, Bogard’s Administrator v. Illinois Cent. R. Co., 139 S.W. 855, 857 (Ky. 1911) (rejecting argument that railroad had an affirmative duty to maintain the capability to diagnose measles in a passenger who allegedly spread the disease to plaintiff’s child), with In re September 11 Litigation, 280 F. Supp. 2d 279, 293-94 (S.D.N.Y. 2003) (recognizing a duty of airlines to screen passengers for contraband that could be used to hijack the airplane).

[13] Centers for Disease Control and Prevention, Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19).

[14] Centers for Disease Control and Prevention, Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.

[15] Occupational Safety and Health Administration, Guidance on Preparing Workplaces for COVID-19.

[16] See, e.g., In re City of New York, 522 F.3d 279, 285-86 (2d Cir. 2008) (“Governmental safety regulations can . . . shed light on the appropriate standard of care.”); Rolick v. Collins Pine Co., 975 F.2d 1009, 1014 (3d Cir. 1992) (holding O.S.H.A. regulations were relevant to the standard of care).

[17] See, e.g., Ebaseh-Onofa v. McAllen Hospitals, L.P., No. 13-14-00319-CV, 2015 WL 2452701, at *6 (Tex. Ct. App., May 21, 2015) (noting plaintiff’s argument in lawsuit based on nurse’s death from H1N1 that the standard of care was determined by C.D.C.’s purported requirement that healthcare workers use N95 masks when treating patients suspected of having the virus).