By Chris Avcollie,
Several faithful readers of our humble employment blog have asked us a pressing and important question that many employees are thinking about at the moment: “Can I sue my employer if I get Covid-19 at work?” As with most employment law questions, the answers are neither simple nor straightforward and they depend to a large extent on the laws of the state wherein the employment is located. The basic answer is: “Yes. You can sue your employer if you get Covid-19 at work except in states that have passed statutes prohibiting it, provided you can over-come the significant legal obstacles to this type of claim.” I will attempt to unpack some of the key issues surrounding this significant and timely inquiry. Let’s try to jump those legal hurdles!
The Initial Hurdle: Worker’s Compensation
The answer to the question: “Can I sue my employer if I get Covid-19 at work?” depends, in the first instance, upon what you mean by the word, “sue.” In a broad sense, most people consider “suing” to encompass any type of legal claim against another party. Lawyers, however, use this term to refer specifically to the initiation of a lawsuit against another party in court. In this instance, we must carefully distinguish between the term “lawsuit” or a civil action for damages brought in a trial court and “Worker’s Compensation claim,” which is an administrative action usually brought before a state agency to seek statutorily limited compensation for work related injuries.
In most cases where one can demonstrate that one has contracted Covid-19 at work, the infected employee can bring a Worker’s Compensation claim. It is important to note that this is not a “lawsuit.” The primary difference between a “lawsuit” and a “Worker’s Compensation claim” is that a plaintiff in a lawsuit can seek full, fair, and just compensation for all of his or her damages and losses as well as equitable relief if applicable. In a Worker’s Compensation case, the claimant may seek only the limited damages set forth in the state’s Workers Compensation statutes. Worker’s Compensation is therefore a very limited remedy. The benefit of a claim under Worker’s Compensation laws is that unlike the plaintiff in a lawsuit, the claimant in a Worker’s Compensation suit need not prove that the employer was at fault or that he or she committed some negligence, recklessness, or misconduct which caused the damages. It is enough to prove that the injury or illness in this case, occurred at work. Additionally, the claimant in a Worker’s Compensation case need only prove the type of injury or illness sustained at work and the damages are then calculated by a statutory formula. Thus, the Worker’s Compensation system is considered a “trade-off.” Claimants give up a portion of the damages they could otherwise obtain at law, but they are relieved of much of the delay, cost, and burdens of proof that litigants face in court. Hereafter, we will refer to Worker’s Compensation cases as “claims” and actions for damages brought in court as “lawsuits.”
The most commonly available remedy for a worker who contracts Covid-19 at work is the Worker’s Compensation claim. Most every state that has a Worker’s Compensation system also has laws that make Worker’s Compensation the “sole and exclusive remedy” for all workplace illnesses or injuries. This means that a Worker’s Compensation claim is the only type of claim an employee may bring. Injured workers do not have a choice to pursue their damages in court if they wish. This means that as an initial matter, most cases involving Covid-19 at work are going to be resolved in the Worker’s Compensation process and no lawsuit may be filed except in very specific circumstances. That means most cases of workplace Covid-19 are going to be poorly compensated. Even in cases involving the death of the infected employee, the exclusivity rule of the Worker’s Compensation system will often prohibit the employee’s survivors from filing a lawsuit for wrongful death. Even survivor’s claims are strictly limited to the Worker’s Compensation system.
On February 14, 2021, Lauren Weber of The Wall Street Journal published an article captioned “Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected“. The take away is that employees are facing a high bar to prove their Covid-19 Workers’ Compensation claims.
The Liability Hurdle: Intentional or Willful Conduct
So what are the “specific circumstances” when an infected employee might be able to get around the exclusivity rule of the Worker’s Compensation system and file a Covid-19 lawsuit against their employer? One common exception to the exclusivity rule is the third-party exception. If a person or entity other than your employer causes your workplace illness or injury, an employee may sue that third party depending on the applicable state laws. Another common exception applies in some states in cases where the employer does not carry Worker’s Compensation insurance. In some states that do not include occupational illnesses in the category of compensable injuries under their Worker’s Compensation law, employees may sue their employers for Covid-19 infections. The most common exception to the exclusivity rule involves cases where the employer either intentionally or willfully engaged in misconduct that caused the worker’s illness or injury.
In Connecticut, this exception is called a “Suarez Case” after the case called Suarez v. Dickmont Plastics Corp., 242 Conn. 255 (1997), where the Connecticut Supreme Court held that employees could sue their employers (for illness or injury) in cases where the employee can prove: “either that the employer actually intended to injure the plaintiff (“actual intent” standard) or that the employer intentionally created a dangerous condition that made the plaintiff’s injuries substantially certain to occur (“substantial certainty” standard).” Id., at 257–58. This standard provides a very narrow exception to the exclusivity rule because it is so difficult to establish. The plaintiff employee must prove that the employer intentionally or deliberately created the dangerous situation under circumstances where the injury or illness was very likely to occur. Not many employers would deliberately harm their workers, so this is quite difficult to prove. Many states have exceptions similar to Connecticut’s Suarez exception, although the standards differ from state to state.
For example in some states such as Arizona and New York, the exception applies only if an employer’s purposeful actions were actually intended to harm the employee. Florida only allows the exception where an injured employee can prove that the employer’s actions were “virtually certain” to cause the worker’s injury, that the employee was unaware of the risk, and where the employer took steps to conceal the danger. Texas allows the exception only in cases that result in the wrongful death of the employee and only if the employer exhibited, “gross negligence.” New Jersey, like Connecticut, has a slightly lower but still formidable standard. New Jersey’s Supreme Court has held that the employee does not have to prove that the employer intended the harm the employee, only that there was a “substantial certainty” that the employee would be injured. While these state law exceptions to the exclusivity rule are burdensome, it is not yet clear in most states how courts will apply them to Covid-19 cases where employers disregard established safety protocols like mask-wearing, social-distancing, work from home options, and reduced capacity. Is Covid-19 “virtually certain to occur” in public workspaces where mask-wearing, health screening, and social distancing precautions are not enforced?
One important distinction to understand here is the difference between claims of negligence and those involving intentional conduct. While most injury lawsuits are based on the concept of “negligence” which is the standard of liability which applies where a party breaches the ordinary standards of care in circumstances where an injury is foreseeable, the exceptions to the Worker’s Compensation exclusivity rule generally require some level of intentional conduct to succeed. Employers who are merely negligent or careless can almost never be sued for Covid-19. Because of the exclusivity rule this means that employees cannot file a lawsuit in cases where an employer was merely negligent or careless in following Covid-19 protocols and workplace safety rules. In cases involving employer negligence or carelessness, only a Worker’s Compensation claim would be available. Merely proving careless or inconsistent enforcement of Covid-19 safety protocols is not enough to meet the exceptions to the exclusivity rule.
The Big Hurdle: Causation
In workplace Covid-19 lawsuits, the largest hurdle to overcome in my view is the hurdle of causation. A claimant in a Worker’s Compensation case only needs to prove that he or she contracted the virus at work. This in itself can be a herculean task. Extensive and well documented contact tracing and even genetic sequencing of the relevant strains of the virus by public health officials may be required to prove where and when someone contracted the disease. This can be devilishly challenging in the case of a highly contagious and widespread virus because it can be contracted easily almost anywhere one goes in public. If the coffee shop you stop to pick up coffee at on the way to work, the gas station you go to twice a week, and your grocery store, as well as your office all have cases of Covid-19, how can one prove that it was more likely than not that the would-be plaintiff caught the virus at one location and not the others? Merely proving that it is more likely than not that you contracted the virus at work is a huge task.
A plaintiff in a lawsuit, however, must not only prove that the virus was contracted at work, but also that the employer’s actions or inactions caused the employee to contract the illness. This is a much more difficult burden of proof. Did the employer cause the employee to contract the virus where mask mandates were not enforced but social distancing was practiced? If cases of Covid-19 circulated among the staff who were required to wear masks can it be proven that the failure of the employer to enforce mask wearing among customers caused the employee’s illness?
The Last Hurdle: Proving Damages
If an infected plaintiff employee is able to clear the Worker’s Compensation hurdle, overcome the intentional conduct hurdle, and summon evidence to surmount the causation hurdle, the final hurdle in bringing a Covid-19 case in court against your employer is proving and calculating the damages that you are asking to be awarded. As with liability, questions of damages are more easily resolved in a Worker’s Compensation claim than in a lawsuit. At Worker’s Compensation, damages are strictly limited to set categories of damages and a specific formula calculation. Damages for pain and suffering and emotional distress are often very limited or unavailable in a Worker’s Compensation claim. In a lawsuit, however, each element of damage must be proven by the plaintiff by a preponderance of the evidence.
How does one calculate the damages suffered when one contracts a deadly disease amidst a global pandemic? Symptoms for Covid-19 can range from no symptoms at all to death and all levels of illness in between. Can damages be calculated for the suffering that occurs when one unknowingly infects one’s spouse or children with Covid-19 due to an employer’s misconduct? What damages should be awarded in cases where an infected employee is only mildly ill for several weeks but because the employee is suffering from medical conditions that put her at high risk of death from Covid-19, she spends those weeks in constant fear of imminent death? How can a plaintiff be compensated where he or she is suffering from long term complications from Covid-19 that doctors do not know yet how to treat? While many types of damage are not compensable in the Worker’s Compensation context they must be proven and calculated in a lawsuit.
State Imposed Hurdles: Statutory Liability Shields
Some states have created special laws that shield some or all of its employers from lawsuits related to Covid-19. Many states, including Connecticut and New York, have enacted laws that shield healthcare facilities from liability related to Covid-19 infections. States such as Michigan have passed laws that shield all employers from Covid-19 liability. Ohio has passed a law that shields nearly all employers from Covid-19 liability from its workers unless the employer engaged in willful and reckless misconduct. Many of these state shielding laws have exceptions similar to the Worker’s Compensation exclusivity exceptions such as for intentional misconduct or intentional disregard of government imposed safety protocols.
Some creative plaintiffs and their lawyers have tried to get around these liability shields and the Workers Compensation hurdles by framing their lawsuits under alternative theories of liability. A number of lawsuits have been filed against employers who disregard Covid-19 safety protocols under theories that they have created a public nuisance. These suits allege that the employer is creating a dangerous situation to the public by failing to take proper Covid-19 precautions. Plaintiffs in these cases often seek court-ordered injunctions requiring the offending employer to enforce safety procedures. Cases have also been filed alleging the employer’s breach of OSHA safety guidelines. Other employees have sued their employers under whistleblower protection laws. Employees who file “whistleblower” claims have alleged that they were terminated illegally for complaining about the employer’s failure to follow proper safety protocols. Several states allow employees to bring claims of constructive discharge in Covid-19 cases. These claims allege that the employee was forced to quit her job because she was put in danger by her employer’s failure to follow safety protocols.
While these state imposed liability shields do not make it completely impossible to bring a lawsuit for Covid-19 in the workplace, they make the bar so high that only the most egregious cases of employer misconduct could have a chance of success. Each state is currently working out its own legislative and judicial tolerance for worker suits related to Covid-19.
What to Do If You Are at Risk of Covid-19 Due to an Unsafe Workplace
Given the high hurdles the law has erected to make it difficult to sue an employer for a workplace Covid-19 infection, what can you do to protect yourself if your employer is not implementing appropriate safety precautions? I recommend the following:
-Report the unsafe conditions to your employer or Human Resources department in writing. In many cases employers want to provide a safe environment but they may not be aware of all of the protocol violations throughout their organization. Making your complaint in writing will also help to document your efforts to address the problem should you need to make a claim later.
-Document the violations of protocol as well as your efforts to communicate them to management. This is important to demonstrate the nature of the unsafe conditions should you need to prove them in later. Strong evidence of the unsafe conditions in the workplace will be needed for any type of claim or lawsuit related to Covid-19..
-If management does not address the Covid-19 related safety issues promptly, then make a report in writing to OSHA and to your state Department of Public Health. A detailed report outlining the safety violations and any other relevant information could trigger an agency investigation that could help address the issues.
-In some states you can terminate your employment and bring suit against your employer for constructive discharge if you are forced to quit in order to protect your health and safety. In other states you cannot bring such a suit but you may have to leave your job anyway. Although it is deeply unfair that employees sometimes have to choose between their health and their livelihood, the limited legal options provided to address Covid-19 in the workplace may make that life or death choice necessary.
-Seek an experienced employment attorney to help you navigate the situation. Dealing with an unsafe work environment due to Covid-19 can be difficult and confusing. There is no substitute for a skilled employment attorney in these circumstances. Seek legal advice as soon as you observe a problem at work.
The issue of whether to hold employers liable for Covid-19 infections in the workplace raises fundamental questions about our social and economic values. How should we apportion the inevitable risks of commercial activity in society? Should the employers shoulder more of the burden because they profit the most from the economic activity? Should employees deal with the risks themselves since they are free to choose more or less safe work environments as they wish? Should the government provide some compensation to victims of Covid-19 who risked their health to increase our gross domestic product and therefore our national interests? While most Americans seem to honor the front-line workers who have courageously pulled our nation through the early stages of the pandemic, we seem to be reluctant to provide any equitable legal remedies to them when they become sick or die serving our collective good. Removing some of the hurdles employees have to jump over to obtain compensation for unsafe working environments during the pandemic would be a great first step.
If you need advice on a Covid-19 risk at work or any unsafe working condition, please contact us at Carey & Associates, P.C. at email@example.com or call (203-255-4150. Chris Avcollie is an Associate Employment Law Attorney with the firm.