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In the last year, COVID has led to state-wide lockdowns, converted tens of millions of employees into remote workers, pushed millions more into unemployment, drastically altered how businesses operate, and wrecked our favorite holiday traditions.

Lawyers from a host of practice areas also have their eyes on another feature of the pandemic: a wave of virus-related lawsuits.

Nationwide, over 8,000 virus-related lawsuits have been filed. At the root of many of these is the question of who should be held liable when COVID is contracted on the job or at school.

Fearing a deluge of litigation some state and federal lawmakers are looking to shield businesses from virus-related liabilities. Conversely, other lawmakers fear doing so will stop employers from taking proper precautions to protect workers.

Federal efforts

Outgoing Senate Majority Leader Mitch McConnell (R-KY) declared that COVID liability protection was a ‘red line issue,’ refusing to allow any relief bill to pass that didn’t include it. “No bill will pass the Senate without liability protection for everyone related to the coronavirus,” McConnell told reporters back in July 2020.

However, it appears that the red line faded. In December’s stimulus package, McConnell agreed to set aside liability protections in exchange for Democrats dropping their demand for aid for states and local governments.

The original vision of Senate Republicans was drafted in the “Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act, also known as the SAFE TO WORKafe to Work Act (“STWA”). While the bill touted its ability to “lessen the burdens on interstate commerce by discouraging insubstantial lawsuits,” critics asserted it would have made it nearly impossible for affected plaintiffs to win in court.

They expressed 6 primary criticism’s with this attempt to shield liability:

  1. Plaintiffs would have an unusually high burden of proof. The typical standard of proof in a personal injury suit is a “preponderance of the evidence,” meaning a plaintiff need only prove that a defendant’s action or inaction more likely than not caused the injury. The STWA’s burden of proof is “clear and convincing evidence,” requiring a plaintiff to show that it was “highly probable” their employer’s actions or inactions caused their infection and injury as opposed to being infected from another location or individual.

  2. In order to win a suit, a plaintiff would have to show that their employer wasn’t just negligent—not acting reasonably under the circumstances—but that they were intentionally or grossly negligent—acting with reckless disregard for the safety of their employee.

  3. Plaintiffs would be required to identify every location and individual they were in contact with for two full weeks prior to the appearance of their COVID-19 symptoms and prove that their infection came specifically from their workplace.

  4. All COVID-related suits would have to be filed in federal courts.

  5. Recoverable damages would be limited to the amount of a plaintiff’s lost wages unless they proved  their employer intentionally exposed them to the virus. Even then, any punitive damages “may not exceed” the amount of a plaintiff’s lost wages.  

  6. Plaintiffs had one year from the date of infection to file suit. In most states, the statute of limitations for a personal injury suit is two years and in some states as long as four years.

While previous efforts to create broad liability shields have failed, McConnell continues to insist that he will fight for liability protection for any ensuring stimulus package. With Democrats taking control of the Senate and presidency, his window for pushing broad liability shields is narrowing.

State actions

In the absence of federal legislation on COVID-19 liability, state legislatures have been swift to pass measures protecting businesses. More than 30 states have passed some kind of liability shield, resulting in a hodgepodge of inconsistent state laws regarding which businesses qualify for immunity from liability, what acts or omissions give cause for action, and how long immunity lasts.

One of the first states to act was Alabama. In May, the legislature issued 8 emergency proclamations granting liability protection for businesses and health care providers. Legislatures in Oklahoma and Wyoming went further, expanding immunities from civil liability to individuals and all businesses from COVID-related actions.

Other states have been more limiting in granting liability protections. Massachusetts has thus far limited such protections only to health care facilities and educational institutions as well as their employees. Ohio has pending legislation that grants protection only to individuals and organizations working in industries that are deemed essential.

While state responses have differed in specifics, there is broad consensus that employers will not be liable for a COVID suit if they have put forth “reasonable and good faith” efforts to comply with any government standards existing at that time.

Existing and pending legislation in each state urges businesses to follow guidelines set forth by OSHA and the Centers for Disease Control and Prevention for regular cleaning and disinfecting of the workplace as well best practices for social distancing.

What lawyers should watch for moving forward

Even without liability shields, there are still significant hurdles for COVID-related lawsuits against employers, as the workers’ compensation system is designed as the sole remedy for workplace injuries. And in most states, workers’ compensation won’t cover COVID except for some healthcare workers and first responders.

There might be greater opportunities for lawsuits that are one step removed from the immediate COVID infection. For instance, if a boss retaliates against a worker for complaining about unlawful behavior (like ignoring mask mandates), that’s grounds for a lawsuit.

Other related workplace issues include breach of contract, discrimination, wrongful termination, FMLA interference, and wage and hour disputes.

On the defense side, lawyers should drill down into the liability developments in their jurisdiction in the months ahead. In addition to following OSHA and CDC guidelines, here are seven practices that attorneys should urge business clients to implement: 

  1. Keep employees informed of the COVID situation.

  2. Ensure employees are aware of all measures the company is undertaking to protect them from exposure.

  3. If employees are working on-site, post reminders of recommended practices to help prevent virus transmission. Include official recommendations for best prevention practices such as social distancing, wearing masks, and proper hygiene. If possible, send regular emails to all employees about preventive practices with a return notification to verify that employees have read and understand the contents of the emails.

  4. Continuously remind employees of symptoms of the virus and urge them to see a doctor immediately if they have any symptoms.

  5. Establish an effective internal complaint resolution system for employees to share their concerns and for management to take immediate steps to resolve issues that arise.

  6. Designate a senior member of management to track evolving local, state, and federal guidelines and to ensure that company procedures and practices are updated as needed.

  7. Inform employees of any confirmed cases in the workplace while maintaining the privacy of any infected individuals.  

  8. Carefully adhere to all other workplace laws regarding issues like retaliation and discrimination.

Even as vaccines have arrived, COVID-19 isn’t going away anytime soon. While no preventive measures are 100 percent guaranteed, following the above recommendations will enable employers to protect their workers and avoid expensive lawsuits later.