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Can You Sue Your Employer for Covid-19 Illness?

In this episode of the Employee Survival Guide, Mark explores the issue: Can you sue your employer for Covid-19 illness? The discussion explores the Workers’ Compensation system in each state and other types of common law claims that may be asserted against employers.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.


The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.   Mark has seen just about every type of employment dispute there is, including the man who lost his voice box and his career, and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.   He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.


The Employee Survival Guide podcast is just different than other lawyer podcasts! How?   Mark hates lawyer speak used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.   This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.   Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.   Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!   Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.   Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.   Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on  Facebook,  Twitter  and  LinkedIn.   We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as  Apple Podcasts.

For more information, please contact our employment lawyers in Connecticut and New York, Carey & Associates, P.C.  at 203-255-4150,

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.   Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

What To Expect When You’re Expecting To Be Fired–Severance Negotiation


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Welcome to another edition of the Employee Survival Guide, where you can learn everything your employer does not want you to know about and more. Now, here’s attorney Mark Carey. Hey, it’s Mark here and welcome to the next edition of the employee Survival Guide. This week I’m going to talk about can you sue your employer for COVID-19 illness? Several faithful readers of our humble implement blog have asked us a pressing and important question that many employees are thinking about. 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 on a large extent on the laws of the state where the implement 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 overcome the significant legal obstacles in this type of claim. I will attempt to unpack some of the key issues surrounding the significant and timely inquiry. Let’s jump right into legal issues right away. The initial hurdle workman’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 a workers compensation claim, which is an administrative action usually brought before us to agency to seek statutory 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 workman’s compensation claim. It is important to note that this is not a lawsuit. The primary difference between a lawsuit and a workers 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 workers compensation case, the claimant may seek only the limited damages set forth in the state’s workers compensation statutes, workers compensation is there for a very limited remedy. The benefit of a claim under workers compensation laws is that unlike the plaintiff in a lawsuit, the claimant employee in this instance, in a workers 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 is enough to prove that the injury or illness in this case occurred at work. Additionally, the claimant in a workers 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, workman’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 costs and burdens of proof that litigants face in court. Hereafter we will refer to the workman’s compensation cases as claims and actions for damages brought in courts as lawsuits. The most commonly available remedy for worker who contracts COVID-19 at work is a workman’s compensation claim. Most every state that has a workman’s compensation system also has laws that make workers compensation, the sole and exclusive remedy for all workplace illnesses or injuries. This means that a workers compensation claim is the only type of claim an employee may bring injured workers do not have a choice to pursue the 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 a workers compensation process. And no lawsuit may be filed except in the very specific circumstances. This means, as an initial matter, most cases involving COVID-19 at work are going to be resolved in the workers compensation process, and no lawsuit will be filed, except in very specific circumstances. That means most cases of workplace COVID-19 exposure are going to be poorly compensated. Even in cases involving the death of the infected employee. The exclusive rule of the workman’s compensation system will often prohibit the employee survivors from filing a lawsuit for wrongful death. Even survivor claims are strictly limited to workman’s compensation itself 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 on the workmen’s compensation system and file a COVID-19 lawsuit against the employer. One common exception to the exclusivity rule is a third party exception. If a party 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 employee does not carry workman’s compensation insurance Some states that do not include occupational illnesses in the category of compensable injuries under their workmen’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 workers illness or injury. In Connecticut. This exception is called the Suarez case, after the case called Suarez vs. Dyckman plastic corpse in 19 9097. They cannot get Supreme Court held that employees could sue their employers in cases where their employee can prove either that the employer actually intended to injure the plaintiff, or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur. This standard provides a very narrow exception to the exclusivity role because it’s so difficult to establish. The plaintiffs 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 a quite difficult claim to prove. Many states have exceptions similar to Connecticut swear as exception, although the standards differ from state to state. For example, in some states such as Arizona and New York, the exception only applies 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 employers actions were virtually certain to cause the workers injury, that the employee was unaware of the risk and where the employer took steps to conceal the danger. Texas allows exception only in cases that result in a wrongful death of an employee and only if the employer exhibited gross negligence. New Jersey like Connecticut has a slightly lower but still formidable standard. New Jersey Supreme Court has held that the employee does not have to prove that the employer intended to 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 establish safety protocols like mask wearing social distancing, and working from home options and reduce capacity is COVID-19 virtually certain to occur in the 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 and circumstances where an injury is foreseeable. The exception to workers compensation exclusivity role generally require some level of intentional conduct to succeed. employers who are merely negligent or careless, can almost never be sued for COVID-19 exposures. Because of the exclusivity rule. This means that employees cannot file a lawsuit in cases where an employer was merely negligent or careless and following COVID-19 protocols and workplace safety rules in cases involving employer negligence or carelessness only a workman’s compensation claim will be available, merely proving carelessness or inconsistent enforcement of COVID-19 safety protocols is not enough to meet the exceptions to the exclusivity rule. Now the big hurdle causation in workplace COVID-19 lawsuits the largest hurdle to overcome in my view, is the hurdle of causation. a claimant and a workman’s compensation case only needs to prove that he or she contracted the virus at work. This can be an enormous 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 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 should you stop to pick up the coffee in the morning to work. The gas station you go to twice a week, your grocery store, as well as your office all have cases of COVID-19 How can you prove that it was more likely than not that the would be playing if caught the virus at one location and not the others? We only proven 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 employers 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 were masked mandates were not enforced but social distancing was practiced. If cases of sick COVID-19 circulated among the staff who were required to wear a mask, can it be proven that the failure of the employer to enforce the mask wearing among customers caused the employees illness? The last hurdle proving damages if an effective plaintiff employee is able to clear the workman’s compensation hurdle, overcome the intentional conduct hurdle and summon the evidence to surmount causation. The final hurdle and bringing a COVID-19 case in court against your employer is proving in calculating the damages that you are asking to be awarded. As with liability, questions of damages are more easily resolved in a workman’s compensation claim. Then, in comparison to a lawsuit at workman’s compensation damages have strictly limited to a set categories of damages, and a specific formula calculation. damages for pain and suffering and emotional distress are often very limited or unavailable and workman’s compensation claim. In a lawsuit. However, each element of a damage must be proven by the plaintiff by by the preponderance of the evidence more likely, 50% or more. How does one calculate damages suffered when one contracts a deadly disease emits a global pandemic? symptoms or COVID-19 can range from no symptoms at all to death in all levels of illness in between? Can damages be calculated for the suffering that occurs when one unknowingly infects one spouse or children with COVID-19 due to an employer’s misconduct? What damages should be awarded in cases where an infected employees 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 or of imminent death. How can a plaintiff be compensated where he or she is suffering from long term complications for COVID-19 that doctors do not know how to treat? Well, many types of damage are not compensable under the workman’s compensation context, they must be proven and calculated in a lawsuit. Hey, it’s mark here. And if you’re in need of an employment attorney, and regarding your situation at work, please give us a call at Karen associates, PC at 203-255-4150 or on the web at cipc. Law calm 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 a willful or reckless misconduct. Many of these states shield in laws have exceptions similar to the workman’s compensation exclusivities 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 in the workman’s 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 the 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 employers breach of OSHA safety guidelines. Other employees have sued their employers under whistleblower protection laws. Employees who have filed with Whistleblower Protection claims alleged that they were terminated illegally for complaining about the employers failure to file 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 employers 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 workplace COVID-19 infection? What can you do to protect yourself and if your employer is not implementing appropriate safety precautions, I recommend the following. Number one 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 the protocol violations throughout the 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. Number two, document the violations of protocol as well as your effort to communicate them to management. This is important to demonstrate the nature of the unsafe conditions should you need to prove them at a later point. strong evidence of the unsafe conditions the workplace will be needed for any type of claim or lawsuit related to COVID-19. Number three, if management does not address the COVID-19 related safety issues promptly. They may Get a report in writing to OSHA and to your State Department of Public Health. A detailed report, outline of the safety violations and any other relevant information could trigger an agency investigation that could help address the issues. Number four. 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 in their livelihood, the limited legal options provided to address COVID-19 in the workplace may make that life or death choice necessary. Five, so you can experience 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 can you observe a problem at work. And in conclusion, the issue of whether to hold your employer is liable for COVID-19 infections in the workplace raises fundamental questions about our social economic values. How should we apportion the inevitable risk 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 provides 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 frontline workers who have courageously pulled our nation through the early stages of a 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 will be a great first step. And finally, if you need advice on COVID-19 risk at work or any unsafe working condition, please contact us at Carey & Associates, P.C. or on the web at or send us an email at Thank you and have a great week.