The novel coronavirus ushered in shelter-in-place orders across the country and uncertainty about when life will return to what it was. As more states shift to gradually reopening their economies, the path toward normalcy also breeds new anxiety and questions about safe returns to work and businesses.
Contracting coronavirus at work or from a business or restaurant isn’t easily resolved by filing lawsuits, experts say.
Some lawmakers have altered their workers’ compensation rules to make receiving workers’ compensation benefits less burdensome for those deemed essential, such as nurses, doctors and first responders, according to data collected by law firm Ogletree Deakins.
But those changes hardly mean much if you have a regular 9-to-5 job.
Nonessential employees in Utah and Illinois are taking matters into their own hands, alleging in lawsuits that their employers either intentionally exposed them to the novel coronavirus or failed to provide adequate protection against it. In turn, some businesses have responded by making employees sign liability waivers while businesses warn customers about heightened risks.
What to do if you’re infected at work
For most people who are infected at work, the main option will be workers’ compensation, experts say.
Workers’ compensation is a kind of insurance provided by businesses to cover employees who suffer work-related injuries or illnesses. Most workers’ compensation claims will examine whether an injury or sickness arose out of or during the course of employment.
People who fall in the high-risk categories as outlined by Occupational Safety and Health Administration have an increased chance of success if they contract coronavirus and file claims compared with others, said Emily Spieler, an expert in labor and employment law and professor at Northeastern University School of Law.
“The ability of people to prove they contracted this disease at work instead of somewhere else is difficult and is going to become increasingly more difficult,” she said. “Technically, they’re covered under the same law. The problem they’re going to have is proving they contracted the disease at work.”
Coverage under workers’ compensation, however, is not an outright guarantee.
“In some states, it’s extremely difficult to get compensation for infectious-disease,” she said.
Spieler also noted that some states, such as South Carolina and Texas, could exclude coverage because of “ordinary diseases of life,” which means illnesses that are equally exposed to the general public.
It is still unknown how each state with similar definitions will treat covid-19, which often comes with community spread.
Employees in the state of California might have more room to file covid-19 workers’ compensation claims, though experts question the governor’s recent order addressing the new virus.
California Gov. Gavin Newsom (D) signed an executive order earlier this month that created a presumption for any employee who returned to work and contracted the virus after 14 days got the virus from work. The order applies to employees who reported to work outside of their home and were diagnosed with covid-19 from mid-March until July 5.
Newsom’s order also created a rebuttable presumption of infection from diagnosis, which means it will be assumed true that the worker contracted the virus from their job unless proved otherwise.
What is needed to disprove a claim has not quite been laid out by the state, according to McGuireWoods partner Sabrina A. Beldner, who represents employers in all aspects of employment-related litigation and traditional labor law.
“For employers, they’d want to show no one else who’s been in the work environment actually was positive,” she said.
Could I sue instead?
A workers’ compensation claim generally means a person cannot sue in the tort system, and going beyond filing a claim can be a costly, arduous process, according to legal scholars.
Adam Scales, an expert in administrative law, insurance and torts and professor at Rutgers Law School, said the workers’ compensation system is more useful than lawsuits, even though it is less financially generous than the torts system.
“In an ordinary torts case, you simply have to show the defendant was negligent. In a tort case against your employer, it’s a higher standard,” he said.
An employee would have to prove their company was deliberately indifferent to risks and acting intentionally to harm its workers to have a chance in the tort system, Scales said.
“The dividing line between being stuck in the workers’ compensation system and getting into the tort system: Most employment-related injuries do not involve negligence by the employer,” he said.
Scales used Whole Foods as an example of difficulty, pointing to the chain’s implementation of social distancing at stores, limitation on the number of people allowed at once and disbursement of sanitation and protective items for its staff. If an employee became infected with covid-19, which has happened in some locations, the worker could still have a troubled time proving that the store neglected to do anything to protect staff against the virus.
The workers’ compensation system has a no-fault liability running between employee and employer, making the system more attractive than the lawsuit route, he said.
Employees in office settings or other setups where multiple entities are involved, such as a landlord or cleaning service, could sue those parties but they would still have the burden of proving negligence.
As the public slowly returns back to work, where people spend their paychecks and time has some business owners and lawmakers concerned about the spread of lawsuits by consumers.
Senate Majority Leader Mitch McConnell (R-Ky.) warned of a “second epidemic of frivolous lawsuits” earlier this month on the Senate floor that could harm economic recovery before it truly starts.
“Already, more than two-thirds of independent business owners say they are specifically worried about a legal liability minefield getting in the way of reopening,” he said, adding that plaintiff’s lawyers are filing hundreds of covid-19-related complaints across the country. “This is exactly the kind of hostile environment that could take our reopening and recovery from challenging to downright impossible. So the Senate is going to act.”
While McConnell said his position was not advocating for immunity against lawsuits but a higher bar that must be met by trial lawyers, his stance, along with his fellow Republicans, has sparked business group lobbying mania, the Los Angeles Times reported.
McConnell’s office did not confirm if he plans to introduce legislation for business immunization, but federal government intervention could be troublesome for consumers and the law, experts say.
First, plaintiffs could run into serious causation problems if they choose to sue stores or restaurants. Like going after an employer, customers would have to prove they contracted the virus because the business did something wrong.
“You would go broke defending yourself,” Scales said, offering that a safe harbor for businesses who adhere to Centers for Disease Control and Prevention be shielded from lawsuits is another idea floating around. “Let’s find out what businesses are actually doing. Let’s get more information.”
The likelihood of there being many lawsuits is small, Spieler estimates, and is less of a concern than the federal government making rules around lawsuits.
“The intervention by the federal government in private tort law of states would be extremely problematic,” she said. “Tort law is a matter of states.”
This article was first published by The Washington Post.