COVID-19 and Employer Liability: Is Your Company at Risk?

CoAdvantage- Are U.S. employers about to face a shockwave of litigation from workers and/or customers who have been exposed to the COVID-19 coronavirus through their business? Specifically, if an infected but asymptomatic employee comes to work and infects colleagues or customers, can the newly infected individuals hold the employer liable?

This risk is serious. Infections tend to spread in “chains,” says Insurance Journal, and that could lead to an explosion of litigation. “If a business or school is host to such a chain, it could be wiped out financially by lawsuits.”

The Advisory Board reports that “the first wave” of lawsuits related to COVID-19 employer liability has already begun. Consider workers in meatpacking plants. Dozens have died of COVID-19 since the beginning of the pandemic, and lawsuits have already been filed alleging negligence on the part of beef processors like Pennsylvania-based JBS, the second-largest meat processor in the US. Major retailers like Wal-Mart and Albertsons Companies are also facing litigation.

Given that lawsuits have already begun, it’s clear that other employers can expect to face future litigation. It’s much less clear whether courts will find them actually liable. Complicating matters, the standard of employer liability could be different depending on the type of litigation. Is the lawsuit seeking monetary compensation for damages? Or are they looking for “injunctive relief” that will force the employer to implement specific public health and safety protocols?

In general, litigation will have to pass a certain threshold of proof of causation that could be very difficult for employees or customers to meet. For example, how can they prove that they became infected specifically at that workplace as a result of negligence on the part of the employer? But even meritless lawsuits are not necessarily toothless; they will consume budgets, time, and energy at a point where those resources are in short supply.

Senate Republicans have included employer liability protections in draft legislation in order to create, as Senate Majority Leader Mitch McConnell (R-Ky.) says, “a safe harbor for institutions that make good-faith efforts to follow guidelines available to them.”

However, as of the time of writing, this draft bill has not been legislated. For the moment, that puts the onus of the defense on employers.

In this environment of uncertainty, employers should do their best to follow guidance from relevant governmental regulatory bodies on employer liability. For example, the lawsuit against JBS, mentioned above, specifically alleges that the meat processor ignored recommendations from the U.S. Centers for Disease Control (CDC). Likely, one of the strongest defenses against accusations of negligence will be a formal safety plan that enshrines guidance from the CDC, OSHA, the U.S. Department of Labor, and other relevant agencies.

Ultimately, legal liability related to the coronavirus is a complex and uncertain subject. It’s critical that employers with questions or concerns consult with their legal counsel for more specific information pertaining to their unique situation.

CoAdvantage, one of the nation’s largest Professional Employer Organizations (PEOs), helps small to mid-sized companies with HR administration, benefits, payroll, and compliance. To learn more about CoAdvantage’s ability to create a strategic HR function in your business that drives business growth potential, contact us today.