As businesses begin to reopen nationwide, workers face a difficult decision: to risk a COVID-19 infection or to furlough. Although there has been a decrease in coronavirus cases, some still face significant health risks if infected. However, if workers decide to take time off, there is no guarantee that their job will be lined up for them after the coronavirus outbreak ends.
Conversely, some businesses may be fighting to stay alive after facing the extended economic hardship. As a result, businesses could need employees more than ever to help spur income. This means businesses may prioritize the need to stay afloat over customer and employee safe working conditions. Coronavirus liability lawsuits against an employer can be complicated during a time of economic unrest but following the correct process for filing a claim can give individuals the best chance at recovering compensation.
Required Employer COVID-19 Response
Some may be surprised that many employers are not required to abide by the Center for Disease Control (CDC) recommendations. Although the CDC guidelines apply to some job sectors, such as in healthcare, the Occupational Safety and Health Administration (OSHA) is not enforcing the recommendations. Without OSHA repercussions some employers may neglect certain guidelines in their workplace.
Still, many businesses are following CDC and social distancing guidelines to ensure maximum safety as well as avoid liability issues. In instances where these standards are ignored or negligently applied, employees may be able to build a liability case.
Proving Employer COVID-19 Liability
To prove employer liability, workers who catch the coronavirus may need to prove that they contracted it while working during their shift. Since COVID-19 is a highly infectious virus, this may be a difficult standard of evidence to prove. Furthermore, tracing transmission to a particular time and place can be challenging, if not impossible.
Certain factors may help strengthen a COVID-19 transmission case against an employer, however. For instance, businesses that did not provide employees with protective equipment or did not enforce social distancing standards may be more likely to be found liable. Likewise, if multiple employees contracted the virus around the same time, this could be evidence to prove transmission occurred in the workplace.
Employee exposure to infected customers or coworkers could also build a lawsuit. Each case must consider the job duties and interactions the worker had during the COVID-19 outbreak and how likely there may have been a coronavirus workplace transmission.
How Can an Employee Prove Their Case?
As mentioned above, it can be difficult to prove a COVID-19 transmission liability case against an employer. To do so, employees may need to pinpoint transmission to a particular place and time. Furthermore, the employee may need to prove the employer was negligent in safeguarding employees from coronavirus infection and exposure. Since all businesses face different circumstances, such as local infection rate, at-risk customer population, and company size, there is no set criteria for what constitutes employer negligence across the board.
“Currently, different courts and jurisdictions may have a different standard of proof for handling employer COVID-19 liability cases,” says Attorney Charles Boyk of Charles E. Boyk Law Offices, LLC. “Some may create a legal framework to protect a reopening economy, whereas others may prioritize workers’ rights. For that reason, monitoring your case and gathering evidence with a workers’ rights lawyer may be your best option right now.”
In states like Illinois and Kentucky, some governments are shifting the burden of proof for COVID-19 workplace transmission cases from the employee to the employer. This means businesses must present enough evidence to demonstrate contraction did not occur while the employee was working.
Conversely, some states like Arizona are considering lawsuit protection for businesses in an effort to restart the economy. These and similar measures may shift a heavy burden of proof onto the employees or even restrict opportunities for workers to file cases altogether. Currently, the ongoing nature of the coronavirus outbreak means that regulations will vary on a state-by-state basis.
In terms of federal government regulation, the U.S. Chamber of Commerce and other business interest groups are lobbying Congress to enact legislation for COVID-19 liability protection. Doing so would help reopen the economy and rejuvenate the restart process. If such measures are enacted, employees may have a higher standard of evidence and fewer scenarios where they file lawsuits against their employer.
Moving forward, governments and courts will need to decide how to weigh coronavirus transmission cases. On the one hand, officials see the need for the economy to restart and gain some semblance of normalcy. Conversely, the rights for employees, especially those deemed essential employees, need to be protected during a time of emergency. As such, time will tell how COVID-19 employer liability cases will be handled and what protections employees who contract the coronavirus may have.