Can Workers File a Lawsuit if They Get COVID-19 on the Job?

As employees return to on-site work, or for those who have never left, the potential for workplace lawsuits on the basis of COVID-19 has become a reality.

• Businesses are being sued by employees on their own behalf.
• Others are being sued on behalf of family members who have fallen ill or succumbed to the coronavirus they believe was brought home from the workplace.
• Still, other family members are filing suit against employers because their relative died due to workplace exposure to COVID.

Courts around the country are allowing lawsuits related to COVID for a variety of reasons. To date, few have been decided. Employers may be at risk, but there are several hurdles employees must meet before claims are successful.

Workers’ comp and COVID

The first obstacle to a lawsuit will be whether or not the employee successfully filed a workers’ compensation claim because of the virus. For staff members who can demonstrate they contracted COVID at work, the workers’ comp claim is typically allowed. Other claims, such as those filed for vaccine-related illness or injuries, have also generally been approved under workers’ comp policies.

In the majority of states, if an employee receives workers’ compensation benefits, they have no further recourse. Most have a system that makes these payments a worker’s “sole and exclusive remedy,” meaning they cannot follow a claim with a lawsuit.

There are some exclusions in the event of fraud, but generally, a workers’ comp claim ends an employer’s liability. Employers who argue against allowing staff members to file a workers’ compensation claim due to the vaccine or virus may be opening the door to further legal action in the future.

Making the case

From March 2020 to January 2022, Littler Mendelson reported about 5,000 lawsuits have been brought nationwide against employers due to COVID. The majority have been filed in California. Many are being litigated on the basis of negligence on the part of the employer.

If the employee did not receive workers’ comp benefits, the next step might be a lawsuit. To meet the threshold for the courts, the worker may need to demonstrate the business was negligent in protecting its staffers from contracting the disease.

Negligence

Employees may bring a COVID workplace lawsuit with the claim of negligence that led to their (or a family member) contracting the disease.

One way to demonstrate negligence will be to show that the employer failed to shield workers with personal protective equipment (PPE) or protocols.

These could include not providing or not enforcing the use of:

• Face masks
• Hand sanitizer
• Plexiglas barriers
• Rubber gloves
• Social distancing notifications (floor stickers or tape)
• Temperature checks of workers or customers
• Workplace sanitation protocols

Early in the pandemic, employers may not have been aware of the need or may have been unable to acquire PPE.

• February 2020: The CDC recommended masks for anyone exhibiting COVID-like symptoms.
• April 2020: The CDC expanded its recommendation to encourage everyone to wear masks.
• July 2020: Statewide mask mandates became the norm.

OSHA provided guidance in March 2020 on preparing the workplace for COVID-19, recommending social distancing of 6 feet for workers and customers. Lawsuits that claim exposure before those recommendations and mandates may be challenging to win, as employers were relying on guidance from the CDC, OSHA, and local health departments to protect workers.

However, lawsuits filed claiming negligence after mandates and guidance were issued may be more successful.

It is also possible that lawsuits may have been filed for failure to require or enforce masking in the workplace. Yet, the CDC recently revealed cloth masks do not prevent transmission of the virus. It is unclear whether lawsuits based on these factors will be allowed to continue through the legal system.

Contact tracing

The next hurdle for plaintiffs may be tracing the source of the disease to the workplace. For workers in high-risk or high-exposure environments, that claim may be easier to demonstrate. Healthcare workers and those working directly with the public may have an easier route.

For those who worked in low-exposure environments, it may be more challenging to prove the only possible source of the virus was the workplace.

For businesses that have experienced entire workplace outbreaks, the case will be easier to make. However, the employee may have a more difficult time proving their employment was the only possible source of the virus in the cases of those businesses that have seen sporadic or no incidences of the illness in the workplace.

Non-negligence suits

Bloomberg reports the most common COVID workplace lawsuits may stem from retaliation against workers who file OSHA complaints of unsafe working conditions.

In January 2022, OSHA reported a surge in claims. Since the pandemic began, OSHA averaged between 70 and 310 complaints per week.

The Littler report found over 2,700 cases brought involved claims of retaliation. Some on behalf of employees who were let go for:

• Contracting the disease
• Caring for a family member
• Being unable to return to work due to school or care-giving facility closures

The Family and Medical Leave Act (FMLA) requires employers with more than 15 staff members provide at least 12 weeks of job-protected, unpaid leave annually. The Families First Coronavirus Response Act expanded leave to include paid leave for most employers. Workers who were fired during these job-protected leave periods may have a cause for retaliatory lawsuits.

Some workers were denied the ability to work remotely; others believed they were victims of discrimination or other retaliation. In September 2021, SHRM reported non-negligence lawsuits broke down into 3 main categories:

• Remote work or leave issues
• Discrimination
• Retaliation/Whistleblower

Cases that do not require proof of negligence or tracing the virus back to the workplace may be easier to litigate on behalf of the staff member.

Beyond employees

Some lawsuits outline the worker has been injured. Others expand their claim to family members. California courts have allowed a suit to move forward against See’s Candies. A worker claims she contracted the virus due to workplace negligence. Convalescing at home, she infected her husband, who eventually died. More suits based on familial exposure may move forward as a result of this precedent.

Other legal exposure

COVID workplace lawsuits may be filed because of vaccine mandates. Employers who required staff to be vaccinated, either due to the Biden Administration’s guidance or independently, may see lawsuits whether or not the employee was harmed. The recent Supreme Court ruling against vaccine mandates may be a cause. Employees may claim their constitutional rights were violated because they were fired for not getting vaccinated. Alternately, they may claim they were coerced into getting the vaccine by their employer in violation of their rights.

Other lawsuits are being brought that allege local mandates violate collective bargaining agreements and constitutional rights. In Ohio, a bill before the legislature would eliminate workers’ comp immunity and allow potential liability to businesses for “injuries incurred as a result of a mandatory vaccination.”

In Texas, a new law may make it more difficult for employees to sue their company. Legislation requires the employee to show the business “knowingly disregarded government safety standards” and must provide “reliable scientific evidence” showing their employer’s actions directly led to them contracting the virus. It’s unclear whether other states or jurisdictions will follow suit.

Pulling it all together

After surviving the devastating effects of COVID, businesses may not be out of the woods yet. The fallout of the pandemic will likely continue in the court system for many years to come.