The pandemic has changed the way the nation interacts in public places—placing a large responsibility on business owners to maintain safe spaces or risk legal liability. As states begin lifting lockdown orders, freshly reopened businesses could run the risk of being sued if they don’t meet a new caliber of health and safety measures.
Businesses, thus far, have not been granted any legal shields for the COVID-19 economy. With the potential for legal action against businesses related to COVID-19, lawsuits could be twofold: from employees and from customers. Much like the virus itself, the dangers for the public returning to places of business will be difficult to contain. After the health and economic damages already sustained, it could be fair to call the impending lawsuit onslaught in the reopening economy the third act of the COVID-19 crisis.
Immunity is Not Yet Guaranteed for Businesses
In an effort to curb litigation stemming from a reopened economy, lawmakers have signaled the need for business liability shields in the next iteration of congressional COVID-19 aid legislation. Senate majority leader, Mitch McConnell, recently told reporters, “We are working on a narrowly crafted liability protection” bill and that “It will not protect somebody from gross negligence.” But until any federal protections materialize, employers must be cognizant of the legal liabilities present in a recovering pandemic era.
Employees may file negligence lawsuits claiming they contracted the virus at work due to a lack of personal protective equipment or sanitization. These suits could also simply assert that their employer failed to comply with CDC or official industry guidelines and this directly caused their injuries. Such lawsuits will seek medical expenses, lost wages, and pain and suffering punitive damages. In cases of fatal infections, negligence suits will become wrongful death civil action with families suing on behalf of lost loved ones. Negligence suits may also arise from patrons of business who blame their illness on places of business.
Workers’ Compensation Claims
Workers’ compensation promises to be a hotly contested legal battlefield. Employees who fall ill on the job will often turn to workers’ compensation to seek medical expenses, lost wages, and long-term impairment benefits. For workers’ compensation cases, employees must prove that their working environment directly caused their injury.
Each state has its own specific protocols for workers’ compensation coverage that may be further amended by emergency pandemic legislation. But some states have already removed this burden of proof for essential workers. This makes it easier for healthcare, grocery, and transit workers, for example, to make successful claims. The success of these claims ultimately hinges on whether the plaintiff can definitely prove a workplace origin of their illness.
Emotional Distress Tort Claims
Emotional distress tort claims could arise from plaintiffs who have suffered from COVID-19 but also from those who have suffered from the threat of infection due to a business’s conduct. Though not as straightforward as a traditional negligence claim, consequences still loom from poorly managed business operations in the COVID-19, even in the absence of spreading infection.
During the shutdown, many employers turned to furlough or temporary leave policies to attempt to preserve employee relations. But with the doors reopening, staffing decisions are likely to spark age, racial, and disability discrimination claims. Employers may take certain measures to ensure employees showing up to work are healthy and able to perform their duties, but this must be done with equal opportunity principles in mind. EEOC guidelines and employment law offer robust protections for employees returning to their jobs and from all manner of discrimination.
Product Liability Claims
Products falling under the protective or preventative category are likely liability targets. Plaintiffs may sue PPE manufacturers if they contracted the virus despite wearing protective gear. Similarly, hand sanitizer makers have already been hit with lawsuits over misleading product labeling. Drugmakers will also see product liability suits. Whether legitimate coronavirus treatment or rumored COVID-19 prevention, any resulting harm or injury puts pharmaceutical manufacturers in a vulnerable legal spot.
Whistleblower Retaliation Claims
Whistleblowers and subsequent retaliation have been seen across industries in the COVID-19 era. This includes cases within nursing, retail, and even biomedical research at the federal level. The pandemic has put most professionals on high alert and any employer actions that may be construed as retaliation are fodder for litigation under the Whistleblower Protection Program.
Possible Defense for Businesses
It should be noted that there are federal and state legislative and executive orders under consideration to provide some protection for employers from the expected flood of coronavirus lawsuits. However, for the foreseeable future, employers will have tremendous responsibility on their shoulders. But a good defense against COVID-19 lawsuits starts with taking reasonable actions based on current information. This includes implementing CDC, state, and local guidelines as they reopen business operations. In addition to PPE and cleaning requirements, employers must take steps to reconfigure workspaces into distancing-friendly spaces. This could mean rearranging desks in an open office space or placing dividers along assembly lines. Without these necessary preventative steps, employers face larger risks of liability.
Expert Witnesses for the Next Wave of COVID-19 Litigation
In many instances, COVID-19 case success will hinge on questions of fact put before juries across the country. The courtroom is also where employment and infectious disease expert witnesses will come into play. CDC and OSHA experts will be crucial to consult on pandemic-specific safety guidelines for employers. Epidemiology experts will also be important voices of authority on how the virus spreads in a public place and the dangers facing both employees and customers. But for the final decision of liability, it will be up to the courts to determine justice in a post-pandemic country.