As Americans return to the offices, shops, restaurants, and factories they left months ago, employers are wrestling with the legal consequences of getting U.S. workers back on the job while the pandemic is still spreading. Because there’s no cure or vaccine yet for Covid-19, two things are certain: People will get sick, and many will end up in court demanding safer working conditions or compensation for lost wages and medical bills.
Some employees already have filed lawsuits claiming companies including
“With Covid-19 still spreading, companies that require employees to work on-site or interact with the public will need to be careful to avoid winding up in court,” says
Still, workers who get sick and want to sue won’t go straight to court. Instead, they’ll make claims through state-run workers’ compensation systems, the vast insurance networks that almost all businesses are required to buy into. What’s less clear is whether those claims will succeed, because states define differently what’s covered under “occupational diseases” provisions. And labor advocates say the system isn’t always friendly to workers, often denying claims or providing payouts well below lost wages and medical bills. “This could be such a massive number of claims that there could be some pushback from the system,” Estreicher says. “Smart employers, in my view, would not fight workers’ comp claims. If they’re in workers’ comp, there’s a much lower risk of damages, and you share that burden with other companies.”
Governments set up workers’ compensation programs almost a century ago to prevent companies from being bankrupted by liability claims. They also provided fast and easy payments for work-related injuries or deaths without requiring proof that an employer was negligent. With the number of
While workers’ comp doesn’t allow for the punitive damages commonly sought in court cases, the threat of a surge in coronavirus-related payouts—Credit Suisse estimates Covid will result in $5 billion in workers’ comp claims—and the resulting higher insurance premiums for companies create an incentive for employers to fight claims, says
Except in situations where the virus has spread widely in a workplace, “it will be very difficult, but not impossible, for workers to win their cases,” says Berkowitz, who’s now director of the worker health and safety program at the National Employment Law Project, a progressive nonprofit.
In many states, workers’ comp doesn’t cover ordinary infectious diseases. Labor advocates have urged changes in those policies or asked for assurances that Covid-19 claims will be honored. In New York, with more infections than any other state, Governor
Some cases will still get decided in the courts, especially those where companies are accused of recklessly putting employees at risk. And lawsuits remain an option if a workers’ comp claim is denied, though they come with the added burden of proving an employer acted negligently.
Most Covid-19 deaths have been in people age 55 or older, who are at a higher risk of infection. So companies that force older workers to return too soon, or avoid hiring older job applicants because of worries about their susceptibility to Covid, could become targets of discrimination lawsuits, Estreicher says. Younger employees with serious underlying conditions also could have legal claims, while employers digging too deeply into medical histories of workers or applicants could lead to allegations of privacy-rights violations, he says.
Some warehouse employees sued
A wave of personal injury cases against businesses that reopen could bankrupt some companies ailing from the post-pandemic slump, the U.S. Chamber of Commerce said in April. Republicans in Congress are seeking to pass legislation to shield businesses from liability for future Covid outbreaks.
Critics say OSHA, part of the U.S. Department of Labor, has failed under President Trump to police worker safety during the pandemic and ignored employee complaints. And the AFL-CIO, the biggest U.S. labor federation, sued the department for refusing to issue workplace rules for coronavirus, putting employees in “grave danger.” “There’s no enforcement by the federal government right now, so the courts are a backstop that gives employers an incentive to do the right thing,” says
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