With coronavirus restrictions approaching the one-year anniversary of U.S. coronavirus restrictions, employers should prepare for lawsuits from workers alleging people are infected at work, legal experts said during a January 21 webinar by Dorsey & Whitney LLP .
“It’s crystal clear that the pandemic is not over yet, even though we have a vaccine that is being given,” said Douglas S. Lang, an attorney at Dorsey. But “there is no vaccine for the new wave of litigation,” said Lang; “It is growing by leaps and bounds for negligence suits filed on behalf of people who claim they contracted the disease in the course of their employment or as sponsors in all types of businesses.” The panel discussed the basis of these claims and what companies can do to protect themselves from liability.
State liability shields
In general, companies need to consider the well-being of customers and employees on their premises, the lawyers said. How this is done, however, may vary depending on the state.
It looked like a federal liability label might have been on the table with it Most recently passed Coronavirus Relief Billbut ultimately it wasn’t included, said Shevon DB Rockett, partner at Dorsey. “Many states have not adjusted their own liability shields through executive ordinances or laws and regulations,” said Rockett. Therefore, government liability shields vary considerably. For example, in Tennessee, a complaint must include confirmation from a doctor that the injuries, or in this case exposure to coronavirus, were caused by the company named in the lawsuit, Rockett said. “In other states, [like Arizona and Iowa] A good faith effort to adhere to public health guidelines is sufficient to ensure exclusion of liability, she said.
Some states have “full protection that covers all businesses that are open under state COVID business rules”. Said Rockett. By comparison, some states focus specifically on healthcare providers, while others do too [Personal Protective Equipment] Manufacturer, she said. In addition, there are states that have passed laws specific to this particular pandemic and others “already had laws on the books shielding health professionals and health facilities in a state of emergency,” Rockett said. In general, the lawsuits have “common characteristics that cover both actual and potential exposure, but do not protect against willful or reckless or willful behavior,” she added.
“I expect there will be additional government shields and nuances in the months ahead that we all need to be aware of, both with customers and employees,” said Rockett.
Regarding employer liability, if a user complains of coronavirus contagion, “you will check your liability insurance,” said Katie Pfeifer, an attorney at Dorsey. Employers need to look at the company’s general liability policy, civil liability insurance (EPL) and employee compensation, Pfeifer said. “You likely have a number of potential coverage that may apply.”
EPL generally does not provide coverage for personal injury claims involving COVID-19, Pfeifer said. However, that may be the case if an employee claims to have been fired because of an issue that arose from the coronavirus pandemic, such as claiming to have experienced a reduction in violence or suffered discrimination, she said. “I think in July we talked about 600 claims that at least concerned one EPL insurance,” said Pfeifer. The reasons for the high number of claims are well known: “Employers had to act hastily, and sometimes the decisions were not made.” [made] as good as they could have been, “she said.
With “[Commercial generation liability insurance] CGL Coverage – If a third party walks in, is injured, or in this case contracts COVID-19 and sues you – there is potential coverage under your CGL policy, “said Pfeifer. Potential Barriers to Coverage under a CGL Policy Guidelines are the expected or intended exclusions from injuries, for example: “This applies if it is claimed that you have not taken the precautions you should have taken,” said Pfeifer. “I think that would be a tough argument for an insurer . “
Responsibility of employers towards employees
“The employer has always had a common law duty to keep the job safe,” said Gabrielle Wirth, partner at Dorsey. “These responsibilities have been expanded by OSHA at both federal and state levels.”
An employee who is not covered by an employee compensation “most states now have” can assert an ordinary negligence claim if the “employer does not take reasonable steps to keep the job safe,” Wirth said. In response to the pandemic, some states have said, “We will extend workers’ compensation to all workers who contract COVID when they have to work in the workplace,” she said. Minnesota and California, for example, have done this.
Wirth noted that the company is starting COVID-19 lawsuits related to unpaid wages for temperature testing and certifications. Failure to reimburse employees for expenses such as home internet use; Failure to take COVID-19 paid sick leave or Law on Family and Sick Leave pay and have free; Exceptions to the exclusivity of employee compensation; failure to provide a secure environment; Inability to accommodate disabilities; and Discrimination or Harassment Based on Disability, COVID-19 Stereotypes or age.
“Some employers, rightly morally, were concerned about their older workers or about workers who were obviously handicapped by something that would make them more vulnerable [to COVID-19]”Said Wirth.” But you can’t treat people differently because of their disability or age. This should be an interactive process, not a blanket rule. ”