Employers Who Put Their Workers At Risk Of COVID-19 Might Face Lawsuits

Throughout the vast majority of history, employees have not been held responsible for workers acquiring infections in the workplace. Things like colds and flu are not considered a workplace hazard and, therefore, not subject to the same laws as occupational hazards.

But the ubiquity of COVID-19 means that many employees are now wondering what rights they have for their employers to protect them. It’s clear from the data that coronavirus spreads in the workplace, but doesn’t when people stay at home. There’s good reason to believe that it has become a kind of de facto occupational hazard, even if it is a fairly generic one. And many workers are now wondering whether they can sue.

Current Rules On Infectious Diseases In The Workplace

Infectious diseases don’t usually fall under the umbrella of “occupational hazards” for two reasons. The first is that they’re not typically specific to particular occupations. You’re just as likely to pick up COVID-19 working in a meat processing plant as you are an office building, regardless of the work you do. Second, tracking how a person acquired the infection is nigh on impossible. It could have been picked up in the workplace, but equally, it might have arisen via some other channel. In hindsight, it is impossible to confirm that the workplace was the actual site where the employee became infected. It could just have easily been on the bus on the commute.

Even so, many people are seeking legal help after a wrongful death when it relates to the workplace. Families of those who have passed away are seeking compensation on the grounds that workplaces didn’t do enough to shield workers.

Currently, there are a large number of ongoing lawsuits in the pipeline and few definitive answers on whether employers are liable or not. Now, lawyers are making tort claims, but whether these suits will pass muster in court isn’t clear.

Lawmakers are yet to make any definitive decisions on the matter. However, they will likely side with business. Companies could face much higher employee liability insurance fees if a large number of these cases are successful. And that could ultimately lead to increased costs and lower efficiency – not something that incumbent governors want, especially during a recession.

The most likely outcome will probably be a compromise of some description. We’re likely to see businesses get off the hook if they can prove that they’ve taken measures to abate coronavirus spread. Things like providing hand sanitizer, regularly cleaning bathrooms, maintaining social distancing, and asking employees to wear masks will all make a difference to their case. Any more than that will likely be seen as both unreasonable and impractical. Places of work are not clean rooms. And businesses don’t have access to hazmat suits. So completely controlling the spread of infection is virtually impossible at this time.

Did The Employee Contract The Virus On The Job?

The biggest issue for people filing lawsuits right now is whether the employee actually caught the virus on the job or not. Even if the law decides that coronavirus is an occupational hazard and, therefore, slots into the existing legal framework, proving this will be complicated. The cost and complexity of pursuing such cases could make it impossible.

The Occupational Safety and Health Administration said in May that employers must keep logs to determine whether workers contracted COVID-19 on-premises or not. Unfortunately, the same statement said that only medical practitioners were able to make that determination. And so employers have been in a kind of limbo, wondering how they can record coronavirus cases if they cannot make definitive entries in their logs.

Did The Company Pursue Profits Instead Of Health?

The critical factor here appears to be whether the company blatantly pursued profits instead of worker health. For instance, firms that make no changes to social distancing and provide no additional hygiene are likely to face significant lawsuits if their workers get sick. The worker may not be able to prove definitively that they picked up COVID-19 on the job. But if they can show that many other people at the same place of work also got the disease, it will improve their case. Furthermore, if they can demonstrate that the employer puts profits ahead of people, courts won’t look favorably on them.

Companies, therefore, need to be careful. Around 53 percent of all small business owners surveyed say that they are concerned about the possibility of suits arising when they finally reopen their places of work. There’s just a lot of uncertainty right now, and companies aren’t sure which way things will go.

Many bosses are now calling on organizations, like the OHSA, to issue guidance on acceptable workplace abatement practices that will protect them. Ideally, they want a list of policies that they can follow that will prove that they’re doing all they can to protect employees from a disease that is essentially ubiquitous, and not the result of going to work.

There’s also confusion about whether it is right to hold businesses as entities responsible for an infection that only employees can spread. After all, only individual workers can carry the disease to the office, something bosses have little control over, especially if they are asymptomatic.

Waiting For New Laws

Currently, businesses are waiting for states to pass new laws on this particular liability issue. So far, companies have given their approval of legislation coming down the pike. It appears to be highly favorable to business owners, keeping it in line with existing rules and regulations on infectious diseases.

For instance, Utah already enacted a bill that made property and business owners immune from COVID-19 related action against them. Other states are likely to follow their lead. The cost to businesses of blanket action may cause some to fail.

Workers, therefore, will probably have to negotiate individually with their employers for protection on the job. Some companies are taking a helpful and proactive approach. Others, however, are not. And that could cause fear in the ranks.