Employee Survival Guide® - Can You Sue Your Employer for Covid-19 Illness?

Starting point is 00:00:00 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? for COVID-19 illness. Several faithful readers of our humble employment 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.

Starting point is 00:00:45 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'll attempt to unpack some of the key issues surrounding this 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,

Starting point is 00:01:33 and a workers' compensation claim, which is an administrative action usually brought before a state 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 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 workers' compensation case, the claimant may seek only the limited damages set forth in the state's workers' compensation statutes. Workers' compensation is,

Starting point is 00:02:17 therefore, a very limited remedy. The benefit of a claim under workers' compensation laws is that, The benefit of a claim under worker's compensation laws is that, unlike the plaintiff in a lawsuit, the claimant employee, in this instance, 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 case, occurred at work. Additionally, the claimant in a workman'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 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, cost, 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

Starting point is 00:03:16 for a worker who contracts COVID-19 at work is the 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

Starting point is 00:03:56 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 Worker's Compensation System will often prohibit the employee survivors from filing a lawsuit for wrongful death. Even survivor claims are strictly limited to Worker'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 of the worker's compensation system and file a COVID-19 lawsuit against the employer?

Starting point is 00:04:39 One common exception to the exclusivity rule is the 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 workers' compensation insurance. In some states that do not include occupational illnesses in the category of compensable injuries under their workers' 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 the Suarez case, after the case called Suarez v. Dickmont Plastic Corpse in 1997. The Connecticut Supreme Court held that employees could sue their employers in cases where their employee can prove either that the employer

Starting point is 00:05:37 actually intended to injure the plaintiff or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur. This standard provides a very narrow exception to the exclusivity rule because it's 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 a quite difficult claim to prove. Many states have exceptions similar to Connecticut's whereas 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

Starting point is 00:06:20 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 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

Starting point is 00:07:00 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, and working from home options and reduced 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 in circumstances where an injury is foreseeable. The exception to the workers' compensation exclusivity rule generally requires 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,

Starting point is 00:07:59 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 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 the causation. A claimant in 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

Starting point is 00:08:42 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 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 we 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,

Starting point is 00:09:30 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 the mask wearing among customers caused the employee's illness? The last hurdle, proving damages. If an effective plaintiff employee is able to clear the worker's compensation hurdle, overcome the intentional conduct hurdle, and summon the evidence to surmount causation, the final hurdle in bringing a COVID-19 case in court against your employer

Starting point is 00:10:10 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 workman's compensation claim than in comparison to a lawsuit. At workman's compensation, damages are strictly limited to a set categories of damages in a specific formula calculation. Damages for pain and suffering and emotional distress are often very limited or unavailable in a workman's compensation claim. In a lawsuit, however, each element of a damage must be proven by the proponents of the evidence, more likely 50% or more. How does one calculate damages suffered when one contracts a deadly disease amidst a global pandemic? Symptoms of COVID-19 can range from no symptoms at all to death and all levels of illness in between. Can

Starting point is 00:10:56 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 how to treat? While 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

Starting point is 00:11:39 regarding your situation at work, please give us a call at Caring Associates PC at 203-255-4150 or on the web at capclaw.com. 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 health care facilities from liability related to COVID-19. Many states, including Connecticut and New York, have enacted laws that shield health care 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

Starting point is 00:12:24 states shielding laws have exceptions similar to the Workman's Compensation exclusivity exceptions workers unless the employer engaged in a willful or reckless misconduct. Many of these states' shielding laws have exceptions similar to the workman'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 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

Starting point is 00:12:58 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 have filed whistleblower protection claims allege that they were terminated illegally for complaining about the employer's failure to file proper safety protocols. that they were terminated illegally for complaining about the employer's 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 employer's failure to follow safety protocols. While these state-imposed liability shields do not

Starting point is 00:13:41 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 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,

Starting point is 00:14:25 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 efforts 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 in 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, then make a report in writing to OSHA and to your state department of public health. A detailed report

Starting point is 00:15:04 outlining 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 and their livelihood, the limited legal options provided to address COVID-19 in the workplace

Starting point is 00:15:36 may make that life or death choice necessary. Five, 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. And in conclusion, The issue of whether to hold your employers liable for COVID-19 infections in the workplace

Starting point is 00:16:02 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 risk 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 risk 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 the pandemic, we seem to be reluctant to provide any equitable legal remedies to them when they become

Starting point is 00:16:46 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 Careary and Associates PC or on the web at capclaw.com or send us an email at info at capclaw.com. Thank you and have a great week.

Employee Survival Guide® - Can You Sue Your Employer for Covid-19 Illness?

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