Bloomberg Law
Oct. 20, 2021, 8:00 AM

Vaccine Mandates Need Liability Shields

Samuel  Tarry
Samuel Tarry
McGuireWoods LLP
Davis  Walsh
Davis Walsh
McGuireWoods LLP

America’s employers might expect that following vaccine mandates and other government workplace standards will shield them from Covid-19 related health claims and litigation. They’d be wrong.

Recent court decisions highlight the ongoing risks of Covid-19 claims from workers, consumers, and even individuals who never set foot into the work environment. Federal mandates on the private sector should bar these lawsuits against employers and businesses that implement vaccine mandates or active antibody testing for their employees.

Gov. Greg Abbott’s (R-Texas) recent executive order, which prohibits every “entity” from mandating employee and customer vaccinations, creates a similar trap for businesses in Texas that also operate in other states. The order effectively prohibits businesses from choosing the most health-protective mitigation strategy—vaccinations. Although a previous liability shield halts Covid lawsuits in Texas, it does little to protect Texas businesses sued in other states.

America’s workers are already blaming their employers for Covid infections. Although filings should decelerate with more vaccinated workers, California has tallied more than 150,000 Covid-19 workers’ compensation claims. Some states reported that in early 2021 more than 50% of all workers’ comp petitions related to Covid-19. This represents a new class of legal claims. People didn’t use to seek recompense for getting the flu at work.

A Legacy of Asbestos Litigation: Foreseeability

Beyond the administrative costs and increasing insurance premiums, the government’s failure to shield compliant businesses leaves them open to attack from two other flanks: (1) lawsuits filed by employees’ family members who contract Covid-19, often referred to as “take home” cases; and (2) lawsuits from consumers who claim they contracted Covid-19 at the business.

Employers are being sued by non-employees for “take home” Covid-19 exposure. Traditionally, business owners owed no legal duty to employees’ relatives. But today, owing largely to the legacy of shortsighted rulings in so-called “take home” asbestos cases, risk managers face an inconsistent patchwork of laws across states. Companies are justifiably concerned they could be sued for injuries and deaths occurring off their premises to people they never employed.

In many states, “take home” liability arises from the hopelessly subjective standard of foreseeability. Courts tend to acknowledge that the notion of foreseeability—a common law relic developed long before our instant information internet age—drives duty. States red, purple, and blue, from California and New Jersey to Virginia, Tennessee, and Oklahoma, allow liability where an employee unknowingly takes home a hazardous substance on their clothing or person.

The Supreme Court of Virginia concluded that cohabiting non-employees had been potentially “placed in a given area of danger” by the employer, even though the decedent never visited the work site. However, states like Maryland, Michigan, and Arizona have decided that employers do not owe a duty for “take home” exposures—at least as to toxic substances.

Meeting or exceeding government standards have brought defendants little relief. Asbestos defendants often argued they kept exposures below OSHA thresholds, but they still lost big jury awards. Without a full liability shield, today’s Covid-19 defendants are left to argue they complied with the vaccine mandates, and then hope for the best.

Companies Face Uncertainty and Risk

The initial “take home” Covid-19 lawsuits highlight the uncertainty and risk companies face. A federal court in Wisconsin allowed a “take home” case to proceed, reasoning the phenomenon of Covid transfer from workplace to home can be sufficiently foreseeable. Similarly, a California state court reached the same conclusion, relying on precedent from the state’s asbestos litigation.

Employers did get a win this summer, when a Maryland federal judge dismissed a “take home” case against Southwest Airlines involving the death of a flight attendant’s husband. But even that opinion acknowledged the “foreseeability” of Covid transmission from work to home, and instead dismissed the case on public policy grounds, noting the potential for “opening the floodgates” to new classes of plaintiffs.

This potential plaintiff pool doesn’t end with employees’ relatives. The recent California decision acknowledged consumers could bring similar lawsuits, since premises owners have a duty to warn or make the premises safe from known dangers. And beyond the class of hospitalized and deceased Covid patients, looms those with “long Covid,” and another potential wave of suits.

Liability Shield Is Needed

Getting more shots in arms furthers public health, curbs the pandemic, and helps get Americans back to work safely. But even as more employers adopt vaccine mandates and follow the new OSHA guidelines, hospitalization and fatality rates will not drop to zero.

Where death and resentment are found, litigation tends to follow. Obeying federal and state workplace guidelines, getting shots in arms, and reminding workers to follow guidelines and policies offers the strongest defense against lawsuits. But currently even those employers can be sued. And a good legal defense still costs time and money.

In current form, the OSHA recommendations provide no liability shield for dutiful employers. And Governor Abbott’s executive order may compound the problem for Texas businesses that also operate elsewhere. As the U.S. surpasses 700,000 Covid-related deaths, business should not have to depend on judges’ application of the outdated and broken “foreseeability” test to know whether they’ll be sued.

Barring lawsuits against businesses that enforce reasonable vaccine mandates would further the public health goal of encouraging more vaccinations. And it would eliminate the risk of lawsuits those businesses don’t need or deserve.

If the federal government doesn’t act to protect the nation’s businesses from this looming litigation tax, state legislatures should. Policymakers should close the gates before the flood comes, at least for those businesses that enforce reasonable vaccine mandates.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Samuel Tarry and Davis Walsh are partners in McGuireWoods’ Products, Environmental & Mass Tort Litigation Department in Washington, D.C., and Richmond, Va. They are editors of “Infectious Disease Litigation: Science, Law, and Procedure” (American Bar Association, February 2021).

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