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Virus-Stricken Workers Face High Hurdles When Suing Employers

April 21, 2020, 10:00 AM

Workers who contract the coronavirus on the job will face an uphill battle in proving their employers created unsafe work conditions, as an anticipated spike in lawsuits related to the pandemic would enter uncharted territory and raise novel legal questions.

Business groups have begun raising the alarm against a potential wave of personal-injury and wrongful death lawsuits filed by employees or their families, and are lobbying the government to shield them from those claims, as the nation gears up for returning to work.

However, it will be difficult for workers to win those cases, employment law professors and attorneys told Bloomberg Law. Workers often are at a disadvantage against employers in these sorts of cases anyway, and they will need to meet several high bars to prove that they became infected with Covid-19 because of employer negligence or recklessness, for example.

That’s assuming those claims aren’t blocked by workers’ compensation laws that prevent employees from filing private lawsuits for workplace injuries. For a negligence claim, workers must prove that they got sick because the employer failed to keep them safe from harm.

“We’re in territory we haven’t seen before,” said Lindsay Burke, who co-chairs Covington & Burling’s employment practice group.. “We are looking at a whole lot of different legal risks and issues. It’s not clear how they will play out. Traditionally an illness you can catch anywhere isn’t something you can hold your employer liable for.”

Compliance with standards established by the Occupational Safety and Health Administration and the Centers for Disease Control can help protect employers. Still, attorneys say the administration has been slow to offer uniform Covid-19 guidance, which could create a difficult landscape for companies to navigate and open the door to tort liability.

Not complying with this guidance could rob employers of a defense to keep cases out of court through workers’ compensation, Burke said.

Personal Injury Cases Hard to Win

Some companies have faced mass outbreaks, including a processing facility of JBS SA in Minnesota and a Smithfield Foods plant in South Dakota. Walmart Inc. and Celebrity Cruises Inc. already face legal challenges based on worker infections.

It’s difficult to predict what type of situation would give rise to personal-injury liability for employers because cases are fact-specific. Companies can also raise several defenses, including that they’ve reasonably met their duty to keep workers safe.

“A company will have to say, ‘This is what we are doing to prevent exposure and this is how we are doing it,’” said Melissa Peters, special counsel at Littler Mendelson, who specializes in health and safety.

OSHA is already fielding an influx of safety complaints from workers related to the coronavirus. An agency spokesperson said the agency has handled 1,819 complaints, 52 employer-reported referrals, and 19 referrals by directly contacting employers and facilitating prompt actions to address alleged hazards.

While more agency guidance is needed on workplace precautions, there are already known steps employers should take to minimize or avoid risk, said James Brudney, a professor at Fordham Law School who teaches labor and employment law.

For office work, separating people by dividers or cubicles, providing adequately spaced working conditions and access to hand-washing facilities, and requiring masks in crowded settings may well be reasonable steps to take, Brudney said.

“The standard under OSHA’s regulation, sustained by the Supreme Court, is working conditions that the employee reasonably believes pose an imminent risk,” he said. “And reasonableness is assessed at the time employees have the belief.”

Exposure Hard to Prove

Businesses could also contend that workers can’t show that working conditions caused them to fall ill, given that Covid-19 can be contracted from numerous places and could be passed from individuals who show no symptoms.

“The kicker is going to be, ‘How is somebody going to establish that they contracted it at work, given the spread of the virus?’” Peters said. “How are you going to be able to track that? Absent a massive outbreak in the workplace, that will be hard to prove.”

An even steeper challenge for employees is bringing a recklessness claim against an employer, which requires proof that an employer knew or should have known of conditions that would expose workers to the virus.

There’s an “unevenness of our knowledge about what types of exposures are likely to cause serious illness, given shifting dynamics of health assessments,” Fordham’s Brudney said.

Carl Rosen, president of the United Electrical, Radio & Machine Workers of America, said some employers are relying on federal health privacy laws to avoid those disclosures.

“This is a battleground right now,” Rosen said. Workers fear being around people and not knowing if they’ve been exposed or not, he said.

Workers’ Compensation Hurdles

Many workers may not be allowed to bring negligence or other “tort” lawsuits against their employers because of state laws that mandate workers’ compensation as the “exclusive remedy” for work injuries. These laws cover many, but not all, workplaces—though some don’t apply to employers with few workers, certain industries such as agriculture, or to independent contractors.

Some states, including Washington and Ilinois, have said they will provide workers’ compensation to health-care workers and first responders who contract Covid-19.

Each state offers its own standards for getting around workers’ compensation claims, said Carolyn Rashby, a partner in Covington’s employment practice group.

Employees covered by workers’ compensation laws can bring separate personal-injury lawsuits in limited circumstances, such as where a worker is harmed by an employer’s willful misconduct or “gross” negligence—both of which are even harder for workers to prove because they must show intentional harm or conscious disregard by employers.

Still, workers’ compensation claims may be a better alternative for workers, given that personal-injury claims are more difficult to pursue, said employment lawyer Rosemarie Cipparulo, who also teaches at the Rutgers School of Management and Labor Relations.

“There’s not always a lot a worker can do,” Cipparulo said. “This is a really gray area.”

Rashby advised a slow and gradual return that doesn’t force workers to put themselves in a risky situation.

“There will be a lot of employees who aren’t able to return to work or unwilling to return because they are at a higher risk,” Rashby said. Allowing workers to return voluntarily will mitigate employers’ risk of claims, she said.

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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