Now that local and state restrictions are easing and businesses are starting to reopen, business owners must determine whether and to what extent to reopen the workplace. While they may be eager to reopen workplaces for financial reasons, they may also be wondering what may happen if they reopen and an employee or customer contracts coronavirus in the workplace.
The family of a Walmart worker in Illinois that died of complications resulting from coronavirus sued Walmart for wrongful death in early April, claiming it didn’t do enough to protect employees from contracting the virus. Specifically, they argued Walmart didn’t do enough to enforce social distancing guidelines, properly sanitize the store, or provide sufficient personal protective equipment for employees (PPE). However, it’s too soon to know what will come of this suit and what that will mean for employers.
Typically, employees must file claims through workers compensation, instead of directly suing their employer. Under the workers compensation system, the coronavirus pandemic will likely fall into one of two categories: occupational disease or ordinary disease of life. An occupational disease is “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.” An ordinary disease of life is a disease “to which the general public is exposed outside of the employment.” Generally, ordinary diseases of life aren’t compensable, but there are certain exceptions under which an ordinary disease of life can be treated as an occupational disease, and, thus, compensable.
There is not currently any precedent discussing how pandemic viruses will be treated in the workers compensation system. Since this pandemic is so widespread, it will likely be treated as an ordinary disease of life and won’t be compensable unless it can fit into one of the exceptions. For an employee to have a successful claim, he needs “clear and convincing evidence” that the disease exists and arose out of and in the course of employment and did not result from causes outside of the employment. Additionally, one of the following must be true: it follows an incident of occupational disease; it is an infectious or contagious disease contracted in the course of employment in a hospital or laboratory or nursing home, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and some volunteer emergency rescue personnel; or it is characteristic of the employment and was caused by conditions peculiar to such employment. The “clear and convincing evidence” standard means that it is substantially more likely to be true that untrue and is a high burden for employees.
The biggest hurdle for employees seeking damages will be proving that they contracted the virus at work, and not elsewhere. This will likely be hard to establish given how widespread the virus is and considering the high clear and convincing burden on the employee. Potentially, if multiple employees in a single workplace contracted the virus, they may have a better argument that it was actually contracted in the workplace.
As we shared in an earlier post, the Occupational Safety and Health Administration’s (OSHA) General Duty clause requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. This clause includes protection from infectious diseases, such as COVID-19. OSHA has also released guidance for employers to follow to reduce the chances of spreading the virus in the workplace. Employers should ensure they take steps to mitigate the risk of spread to help limit any potential liability. However, even following local and state guidance may not be sufficient to fully protect businesses from liability.
Congressional lawmakers have been discussing the topic of corporate liability and whether or not to create protections for businesses related to employees’ and customers’ contraction of coronavirus at the place of business. However, it is unclear if any legislation relating to this corporate liability will be passed.
For additional guidance, contact the employment law experts at General Counsel, PC today at 703-991-7973. Attorneys at GCPC will continue to monitor recommendations and legislation.