COVID-19 and the Workplace: No Safe Harbors in Sight for Employers

The COVID-19 pandemic has both personally and professionally impacted individuals across the world since its spread began in December 2019. The first confirmed COVID-19 case in the United States occurred on January 21, 2020. By March 17, 2020, the virus was present in all 50 states with over 5,800 confirmed cases.

Like many other countries, the United States experienced, and continues to experience, significant alterations in its daily operations. For example, by May 7, 2020, 48 states, and Washington D.C., had either recommended or ordered schools to close for the remaining of the 2019-2020 school year. A Burbio study aggregating school and community calendars from across the nation confirmed that many of these schedule alterations are persisting into the fall semester, with 52% of U.S. students attending school virtually and 19% participating in hybrid schedules.

Along with students’ transition to virtual learning came many professionals’ transition to working remote to enable social distancing, as the CDC recommends. However, many employees nationwide had to continue going into work because working remotely was not an option for their job. Some of these individuals include healthcare professionals, emergency services, agriculture, transportation, etc. As a result, a range of questions arose regarding employees’ rights and how companies should implement guidelines amidst the global pandemic. Can an employee be fired for not reporting to work based on health concerns? What happens when an employer runs out of appropriate personal protective equipment for employees? What accommodations should employers make for medically at-risk employees? Lawsuits against employers have already begun and some individuals anticipate a “tidal wave” of lawsuits to come.

One specific consideration expected to be at-issue in a number of lawsuits is whether businesses with COVID-19 outbreaks are responsible for take-home infections. In other words, can an employer be held liable for loved ones contracting COVID-19 who never came into the office but are exposed by an employee who contracts COVID-19 at work and spreads the virus in their home? Out of the 200,000 COVID-19 related deaths in the United States, between 7% and 9% are believed to have been attributed to take-home infections.

Senate Majority Leader Mitch McConnell recently proposed legislation that included liability shields that would provide “a safe harbor [from COVID-related lawsuits] for institutions that make good-faith efforts to follow guidelines available to them” because “[n]obody should have to face an epidemic of lawsuits on the heels of the pandemic that we already have related to the coronavirus.” However, the Senate blocked this legislation in a 53-47 vote on September 10th, so businesses may very well face notable lawsuits involving take-home Coronavirus infections.

An Illinois woman has already filed a “take-home” lawsuit. She is suing Aurora Packing Co’s meat processing plant and is alleging that her mother died from COVID-19 because her father, who worked at the plant, contracted it there while working “shoulder to shoulder” in the processing line before bringing it home. The complaint further alleges that the plant knew there was an outbreak within the plant, but it did not warn the employees.

One step in these take-home suits requires a showing of a “causal chain” between the infected family member and the business. Lawyers on both sides of the suit noted that this “causal chain” might be difficult to establish because it requires the plaintiff to show that the business’ failure to properly implement safety measures is what led to the worker contracting the virus and infecting their family member. There have been successful causal connections proved in previous take-home infection cases, though, such as the 2013 California case where a jury awarded compensatory and punitive damages to a woman whose lawyers argued that her mesothelioma diagnosis was connected to the asbestos fibers on her husband’s work clothes.

While it is likely true that (a) most business owners do no want to “deal with” lawsuits amid the COVID-19 pandemic and (b) adequately displaying a “causal chain” may be difficult, there is value in providing employees and their families the ability to seek compensation where compensation might be due.

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