The COVID-19 pandemic has placed significant strains on virtually every aspect of life. While state and local governments have forced many businesses to suspend operations in an effort to mitigate the spread of the virus, businesses that have been deemed "essential" have been permitted to continue operating. 

These "essential" businesses, however, face different economic problems, such as supply shortages, distribution chain disruptions, and the challenges of providing a safe and sanitary work environment for their employees. And, as the death toll from COVID-19 mounts, employers who either require or permit their employees to work during this pandemic will undoubtedly face increased scrutiny as to whether they are taking adequate precautions to protect their employees.

Unsurprisingly, this last week saw plaintiffs' attorneys filing the first of what we expect will be a series of wrongful death lawsuits over employees who purportedly contracted the virus while at work. In most jurisdictions, workers' compensation statutes provide that workers' compensation benefits are the exclusive remedy for on–the-job injuries.  Because the virus is not an "injury," workers' compensation status in many jurisdictions is determined based on whether the virus is an "occupational disease," which generally requires: 

  1. The illness to have arisen out of and in the course of employment; and
  2. The illness to have arisen out of or been caused by conditions peculiar to the work (i.e., the employee has a greater probability of contracting the illness at work than in public generally).

Many states have rushed to clarify that workers' compensation benefits extend to workers who contract COVID-19, especially health care workers and first responders. This is good news for employers who will benefit from the exclusive remedy nature of workers' compensation statutes. 

Workers' compensation immunity is a significant hurdle for employees or their estate to overcome when filing suit against an employer. While workers' compensation immunity is jurisdiction-specific, it typically bars any separate lawsuit against the employer for an injury an employee suffers at work, especially those that result from negligence. There are, however, very limited exceptions to workers' compensation immunity, again depending on the applicable state law. 

Perhaps the most common exception to workers' compensation immunity is intentional conduct of the employer. It is therefore no surprise that these early COVID-19 lawsuits against employers are heavily focused on the purportedly intentional conduct of the employer. These early suits assert that the employer failed to close locations despite knowing that other employees displayed COVID-19 symptoms, failed to prevent employees with COVID-19 from coming to work, hired new employees without screening them for COVID-19 symptoms, failed to adequately clean and sterilize work spaces, and/or failed to adequately promote social distancing. 

Many of these allegations skew more towards negligence than intentional conduct, so it remains to be determined whether courts strike such claims as barred under the workers' compensation statutes. 

Employers should do all they can to keep their workers safe, including following the CDC's guidelines for operating during the COVID-19 pandemic, which can be found here. Strict reliance on the CDC's guidelines, however, will not stop plaintiffs' from filing such claims. Ultimately, a judge or jury will have to determine whether adherence to the CDC's or other governmental guidelines is sufficient and whether the employer took adequate precautions to protect its employees. 

But while plaintiffs may not be confined to the CDC's recommendations, they will almost assuredly use a failure to implement the CDC's recommendations as evidence that an employer failed to take proper precautions. 

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