Even while imposing “shelter in place” orders, the vast majority of states have authorized and encouraged essential businesses to remain open. As states relax their restrictions in the coming weeks and months, non-essential businesses may be permitted to reopen conditionally. Importantly, employers in both essential and non-essential businesses may be subject to claims that they failed to protect their workers from coronavirus exposure. State workers’ compensation laws may limit these claims, but employers must be mindful of exceptions to the exclusive remedy provisions of workers compensation laws and closely adhere to conditions imposed by state and local emergency orders.
Most state shelter-in-place orders permit grocery stores, restaurants, healthcare facilities and other “essential” business to continue to serve the public, but only under conditions designed in part to protect employees from infection and ensure safe operations. Similar conditions and limitations will likely apply to other businesses as restrictions are relaxed. Employers who remain open under these conditions must act carefully to protect their employees from coronavirus exposure. If employees become infected, employers may face claims alleging, among other things, that they failed to cleanse and sterilize physical spaces, failed to implement or enforce social distancing guidelines, failed to provide necessary personal protective equipment, ignored reports that employees were experiencing symptoms of COVID-19, or continued operations after learning that employees had been exposed to coronavirus in the workplace.
Workers’ compensation laws are one potential protection against civil lawsuits by sickened employees. State workers’ compensation remedies generally provide an exclusive remedy for employees injured in the course of their job duties. The case law is replete with decisions barring tort claims involving workplace exposure to communicable diseases — including methicillin-resistant Staphylococcus aureus (MRSA), hepatitis, HIV and dysentery — where a workers’ compensation remedy was available.
Some states exclude “ordinary diseases of life,” such as the common cold or flu, from their workers’ compensation schemes. Coronavirus exposure may be treated similarly. Whether the occupation in question necessarily involves exposure to communicable disease, such as healthcare or first-responder work, will also affect whether workers compensation covers COVID-19. Washington state, for example, recently issued guidance stating that, in most cases, contraction of COVID-19 is not a work-related condition compensable through workers’ compensation laws. Even in circumstances in which a workers’ compensation remedy is not available for COVID-19 infection, whether or not tort remedies are barred will be determined by the law of the state in question.
Where a workers’ compensation remedy is available, an employee can assert a tort claim only in very limited circumstances. In Illinois and New York, for example, a plaintiff must allege and show that the employer specifically intended to injure the employee. Pennsylvania law precludes civil liability for even intentional employer misconduct but permits civil lawsuits based upon an employer’s fraudulent misrepresentations regarding workplace hazards. North Carolina follows the Woodson rule, which provides that “when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees,” it may be civilly liable for that misconduct. California has a “tripartite” scheme, in which injuries caused by employer negligence or without employer fault are compensated at a baseline rate, injuries caused by “serious and willful” employer conduct may receive a 50 percent compensation enhancement, and intentional injuries or injuries fraudulently concealed by the employer may escape the exclusivity bar altogether.
Workers’ compensation laws thus provide a significant but not impenetrable barrier to employer liability for coronavirus exposure. Whether or not workers’ compensation remedies provide an exclusive remedy, employers should pay close attention to social distancing restrictions and other conditions contained in “shelter in place” and other state and local COVID-19 emergency orders. Employers should also consider additional measures to protect their workforce. Such measures will be specific to the workplace and locality, but may include the following:
- Increased cleaning and sterilizing of surfaces
- Providing adequate personal protective equipment for employees at increased risk of exposure
- Installing barriers such as sneeze guards and social distance markers at customer interaction points
- Implementing, promoting and enforcing social distancing guidelines and employee training to prevent transmission
- Developing a workplace flexibility policy to guide employees on how and when they can and should work remotely
- Providing an avenue for employees to report COVID-19 symptoms and a response/isolation protocol for such reports
- Following OSHA’s recommended safety procedures set forth in Guidance on Preparing Workplaces for COVID-19
- Following the CDC’s guidelines in Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019
McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.