COVID-19 in the Workplace - We May Not Be at Peak Yet, but the Lawsuits Are Already Coming

13 April 2020 Blog
Author(s): Jonathan Michael Thomas
Published To: Coronavirus Resource Center:Back to Business Labor & Employment Law Perspectives

The COVID-19 pandemic has placed significant strains on virtually every aspect of life. While state and local governments have forced many businesses to suspend operations in an effort to mitigate the spread of the virus, businesses that have been deemed “essential” have been permitted to continue operating. 

These “essential” businesses, however, face different economic problems, such as supply shortages, distribution chain disruptions, and the challenges of providing a safe and sanitary work environment for their employees. And, as the death toll from COVID-19 mounts, employers who either require or permit their employees to work during this pandemic will undoubtedly face increased scrutiny as to whether they are taking adequate precautions to protect their employees.

Unsurprisingly, this last week saw plaintiffs’ attorneys filing the first of what we expect will be a series of wrongful death lawsuits over employees who purportedly contracted the virus while at work. In most jurisdictions, workers’ compensation statutes provide that workers’ compensation benefits are the exclusive remedy for on–the-job injuries.  Because the virus is not an “injury,” workers’ compensation status in many jurisdictions is determined based on whether the virus is an “occupational disease,” which generally requires: 

  1. The illness to have arisen out of and in the course of employment; and
  2. The illness to have arisen out of or been caused by conditions peculiar to the work (i.e., the employee has a greater probability of contracting the illness at work than in public generally).

Many states have rushed to clarify that workers’ compensation benefits extend to workers who contract COVID-19, especially health care workers and first responders. This is good news for employers who will benefit from the exclusive remedy nature of workers’ compensation statutes. 

Workers’ compensation immunity is a significant hurdle for employees or their estate to overcome when filing suit against an employer. While workers’ compensation immunity is jurisdiction-specific, it typically bars any separate lawsuit against the employer for an injury an employee suffers at work, especially those that result from negligence. There are, however, very limited exceptions to workers’ compensation immunity, again depending on the applicable state law. 

Perhaps the most common exception to workers’ compensation immunity is intentional conduct of the employer. It is therefore no surprise that these early COVID-19 lawsuits against employers are heavily focused on the purportedly intentional conduct of the employer. These early suits assert that the employer failed to close locations despite knowing that other employees displayed COVID-19 symptoms, failed to prevent employees with COVID-19 from coming to work, hired new employees without screening them for COVID-19 symptoms, failed to adequately clean and sterilize work spaces, and/or failed to adequately promote social distancing. 

Many of these allegations skew more towards negligence than intentional conduct, so it remains to be determined whether courts strike such claims as barred under the workers’ compensation statutes. 

Employers should do all they can to keep their workers safe, including following the CDC’s guidelines for operating during the COVID-19 pandemic, which can be found here. Strict reliance on the CDC’s guidelines, however, will not stop plaintiffs’ from filing such claims. Ultimately, a judge or jury will have to determine whether adherence to the CDC’s or other governmental guidelines is sufficient and whether the employer took adequate precautions to protect its employees. 

But while plaintiffs may not be confined to the CDC’s recommendations, they will almost assuredly use a failure to implement the CDC’s recommendations as evidence that an employer failed to take proper precautions. 

For more information, please contact your Foley relationship partner. Foley has created a multi-disciplinary and multi-jurisdictional team to respond to COVID 19, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form. 

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services