All information in this COVID-19 Response Resource issue is effective as of July 21, 2020.
COVID-19 & Employer Tort Liability
Can employers be sued if an employee contracts COVID-19 at the workplace? This is a common and appropriate concern for businesses that are making strategic decisions regarding when and how to resume operations. Technically, anyone can be sued for anything, and many COVID-19- related lawsuits have already been filed against businesses. A better question for businesses to consider is this: Would a lawsuit be successful, and what steps can the employers take to minimize their risk of liability?
Employees who contract COVID-19 at the workplace may be limited to pursuing a claim under state workers’ compensation laws, which guarantee compensation to employees for workplace injuries. Most workers’ compensation laws include an “exclusivity” provision which prevents the employee from pursuing a claim for damages directly against the employer. However, COVID-19 illness or death might not be covered by workers compensation insurance. According to the Idaho State Insurance Fund, whether COVID-19 is covered by workers’ compensation in Idaho is “complex” and may depend on factors related to how far and fast COVID-19 continues to spread. The employee must still show a connection between their job duties and the infection, but that may become harder to prove as the disease becomes more widespread. To be compensable under Idaho law, an occupational disease must be characteristic and peculiar to the trade, occupation, process or employment and does not include hazards common to the public in general. Additionally, workers’ compensation laws, such as Idaho’s, include a statutory exception for “intentional acts.” Given the limited remedy available under workers’ compensation laws, Plaintiffs in COVID-19-based lawsuits have begun to argue their claims fall within the intentional-act exception.
Where the state’s workers’ compensation law does not apply and an employee seeks damages directly against the employer, the question of liability would likely be analyzed under traditional tort law, which requires proof of four basic elements: (1) duty; (2) breach of the duty; (3) causation; and (4) damages.
A. Duty
Courts across the country have generally recognized a cause of action for negligently transmitting communicable diseases. Moreover, the Idaho Supreme Court has recognized a broad duty to prevent foreseeable risks of harm to others. Because the spread of COVID-19 has been deemed a pandemic, and federal, state and local governments have issued mandates and warnings regarding the transmission and spread of the disease, courts will likely recognize that businesses have a duty to prevent the spread of COVID-19 to their employees and others.
B. Breach
Even if such a duty exists, businesses are not liable under tort law unless they commit an act or acts constituting a “breach” of their duty to the employee. A breach typically occurs when the individual or business fails to comply with the “applicable standard of care.” There is no clear “standard of care” under the law for protecting against COVID-19 because of the unprecedented nature of the pandemic and rapid development of the facts and regulations regarding COVID-19. However, courts would likely analyze whether the business exercised the level of care that would be exercised by a reasonably prudent person or business under the same or similar circumstances to avoid or minimize the foreseeable harm. See more on this below.
C. Causation & Damages
Even if a business were to breach its duty, a claimant must still prove that the breach of that duty caused the claimant to contract COVID-19. Based on what is understood about COVID-19 to date, it would likely be difficult for the employee to prove that he or she actually contracted COVID-19 while at the workplace and that it was the business’s negligent conduct that caused the employee to contract the disease.
What About the Risk of Liability to a Customer or Patron?
A separate but related concern that businesses should consider is potential liability if a customer or patron is exposed to, and contracts, COVID-19. This concern is most prevalent among businesses that draw large crowds of people who interact in close proximity. If such a lawsuit were filed under these circumstances, the same general principles of tort liability would likely apply. By taking precautions like those listed below to minimize the legal risk of liability to employees, businesses are simultaneously mitigating the legal risks of liability to customers and patrons.
Recommendations for Minimizing Liability
Considering the information above, it is not entirely clear what a “reasonably prudent” person or employer should do to prevent the spread of COVID-19, especially considering the ever-changing nature of the current pandemic. However, below is a set of recommendations and best practices for employers to undertake to minimize the risk of litigation and liability. Following these recommendations also makes good business sense, as a COVID-19 outbreak among employees or customers can be detrimental to a business’s continued operations.
- Review and understand applicable Occupational Safety and Health Administration (OSHA) Centers for Disease Control (CDC) state and local government and industry specific guidelines, including guidelines regarding sanitizing the workplace. These guidelines continue to change and develop; it is therefore important to regularly review them and check for updates.
- Prepare a detailed plan that outlines how the business will resume operations based on new safety guidelines.
- The plan should include, but should not necessarily be limited to: How the workplace will be sanitized; what personal protective equipment (PPE) will be offered to employees and customers; handwashing requirements: temperature checks; and how social distancing will be implemented and enforced between employees and other employees and customers.
- The plan should include what the employer will do should an employee test positive for COVID-19 or exhibit symptoms of COVID-19. Be vigilant in addressing possible COVID-19 cases among both employees and customers, including conducting “contact tracing.”
- The plan should include how the employer will publicize directives to employees about the new safety guidelines, including staying away from the workplace if they are exhibiting symptoms and what they must do before returning to work. Similarly, the plan should include how the employer will publicize and enforce safety guidelines with customers and patrons.
- Provide all employees with a copy of the plan, and provide training to all employees regarding the safety guidelines. Also be prepared to continue to inform and train your employees on any changes that need to be made to the plan.
- Review and comply with the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. For example, although employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, the employer must maintain confidentiality by not identifying an employee’s medical diagnosis or treatment as required by the Americans with Disabilities Act. Additionally, all information about employees obtained through disability-related inquiries or medical examinations must be kept confidential, and such information should be collected and maintained in separate medical files and treated as a confidential medical record.
- Create and retain detailed records regarding all policies, training and responses to COVID-19 exposure events.
- Work with legal counsel to help tailor your plan to the specific circumstances of your business in a way that will best minimize the risk of legal liability.
If employers concentrate on being vigilant and follow the above recommendations, they will increase the likelihood of avoiding unnecessary litigation and will be in a good position to defend themselves against any claims brought by employees or patrons.
Andrew Alder is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4879 or aalder@parsonsbehle.com.
