By J. Eric Harrison
The COVID 19 pandemic has resulted in disruptions in the lives of almost every American. The disruptions have ranged from minor inconveniences to loss of freedoms and economic turmoil, while some have been sickened and/or hospitalized and over 280,000 Americans have died. It is to be expected that there will be a wave of litigation concerning these losses suffered during the pandemic. While we can expect suits by private entities and governmental entities against both foreign governments and federal, state and local governments, this article will focus on liability for businesses and employers in the private sector.
General Liability. We anticipate that individuals or classes of persons will file suit against private businesses under negligence theories that will allege the business failed to protect customers, clients and/or the public by failing to follow recommended or advisable protocols and precautions to prevent the spread of coronavirus. Any negligence case requires the plaintiff to prove that the defendant breached a duty of care that was owed to the plaintiff which was the proximate cause of injury or death. It is the causation element of negligence law that poses the most significant obstacle to recovery for the plaintiff in these suits. Because the virus is so widespread and the modes of exposure and transmission are so varied and often difficult to pinpoint, much less prove in a court of law, a plaintiff seeking recovery will have a very difficult time in most instances being able to prove that the failure of the defendant to follow or implement certain protocols or safety procedures led to the actual exposure of the plaintiff to the coronavirus that sickened the plaintiff. However, the causation obstacle could be more difficult in certain situations than others. For instance, think of the difference between a patient or visitor in a hospital setting, versus a customer in a grocery store, versus a client visiting a small office setting. Additionally, how will the courts handle the issue of the business establishing sufficient protocols and safety procedures yet allegedly failing to properly enforce them?
Protective Legislation. Protection may be on the way for employers and businesses in the form of legislation that has been passed or is pending at both the state and federal levels regarding liability protections. Most of those laws would limit or eliminate liability and/or provide immunity for businesses from negligence suits related to the COVID 19 pandemic. Most such laws as passed or proposed have exceptions for gross negligence or willful misconduct, would establish a clear and convincing evidence standard for burden of proof for the plaintiff (which is a higher burden of proof than the typical civil case, which is preponderance of the evidence) and would provide for limitations on recoverable damages in such suits. Some of the legislation passed/proposed would apply retroactively back to the spring and summer of 2020.
Medical Care and Diagnostics. There could also be a wave of medical malpractice cases related to diagnosis and treatment of coronavirus-infected patients. Again, as with a typical negligence case, a medical malpractice case requires proof of causation. It is also conceivable that there may be testing labs that are sued due to false negative or false positive test results. Further, because the mortality rates in nursing homes are so much higher than in the general population, we expect to see suits against nursing homes for not only failing to properly diagnose and treat and/or quarantine patients, but also for failing to enact and enforce proper protocols and safety procedures to protect the very vulnerable nursing home patient population.
Breach of Contract. There could also be a wave of litigation related to breach of contract claims against private entities, particularly those in the hotel and hospitality industry, travel industry, and with colleges and universities. Many of these sectors have been particularly hard-hit due to quarantine and travel restrictions. And, since many of the sectors require substantial prepayment weeks or months in advance, failure to pay refunds or reschedule events and services could result in suits against those entities. And they may be subject to the same types of negligence suits as other businesses for failure to enact and enforce proper protocols and safety procedures related to COVID 19. There could also be breach of contract claims between retailers, distributors and suppliers of certain goods and products due to interruptions in the supply chain.
Private Insurance Coverage. Some businesses have business interruption or loss of revenue insurance policies that could generate litigation against the insurers for failing to properly or timely pay claims under those policies. Major League Baseball is certainly looking into this.
Products Liability. Products liability and fraud suits could also become more prolific in the next year across a wide range of industries. Those suits would likely involve claims of faulty personal protective equipment and/or defective health and safety products, as well as claims of false or misleading labeling and advertising, or misrepresentations of proper usage and effectiveness, for items like hand sanitizers, air filters and masks.
Workers’ Compensation. Finally, we expect a wave of workers’ compensation claims related to employees who allegedly contracted the coronavirus in conjunction with their work duties. However, workers’ compensation claims would have the same causation issues as civil negligence claims. The worker would have to prove that the coronavirus exposure occurred at work or while the employee was acting within the course and scope of employment. As with negligence claims, this could be a high bar to cross. The essential functions of the job, as well as with whom, and in what setting, the work is performed, can make a difference in the likelihood of success of those claims. Again, think of an employee at a grocery store, versus a nurse in a hospital that treats coronavirus patients, versus a clerical worker who is in a small office and has very little interaction with the public. Each of those different scenarios poses a different likelihood of success in a workers’ compensation claim. The employer does get the protection of the exclusive remedy rule, which means that the employee’s claims are limited to the scope of the workers’ compensation statute, and the employer cannot also be sued by the employee for civil negligence for alleged exposure. However, we can also envision civil negligence suits by third parties (which are not constrained by the exclusive remedy rule) against an employer whose employee had contracted the virus at work and transmitted it to the third party. Again, however, the causation element would likely be difficult to prove depending on the facts and circumstances.
Mandatory Vaccines & Employer Policies. Employers may also face liability from running afoul of various employment laws impacted by the institution of certain COVID 19-related policies and procedures. With a vaccine set to be approved in December 2020, employers may wonder whether they can or should require their employees to receive the vaccine when it becomes available. Health care facilities often have mandatory vaccination policies for at least certain members of their workforce. But what about other businesses? Employers considering such a policy should first realize there are legal limitations to making such a policy. In 2009, the EEOC first issued guidance, which was updated in March 2020, on dealing with medical questions during a pandemic. While certain medical-related inquiries are allowed during a pandemic due to the substantial health risks to the workplace and general population, the COVID-19 pandemic does not eviscerate all protections provided by the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. In particular, employees who are unable to take the vaccine for medical reasons, or object based on sincerely-held religious beliefs, are entitled to reasonable accommodation from a mandatory vaccine policy (absent undue hardship to the employer). These accommodations, depending on the particular circumstances of the business, may include use of personal protective equipment such as face and nose coverings, telework, or temporary reassignment due to high-risk factors. Each must be considered on an individual basis as part of the interactive process.
Of course, this begs the question of whether the employer should mandate such a policy in the first place. Absent those who work directly with health-compromised individuals, the business justification is not as strong. Rather, the EEOC guidance suggests that employers encourage employees to obtain a readily-available vaccine for the flu, or in this case COVID-19, but not require it unless the demands of the business so require subject to reasonable accommodation.Conclusion. As if the toll on society through impacts on health, prosperity, school attendance, politics, and the way we go about everyday life was not enough, businesses need to keep an eye on the potential exposure to legal liability associated with the current pandemic. While legislative help may be on the way and a plaintiff’s burden of proof may prove difficult to meet, employers would be wise to monitor these developments while continuing to take reasonable steps to protect the health and safety of their employees, customers, and vendors. Here’s looking forward to 2021!
J. Eric Harrison, Member
Wimberly Lawson Wright Daves & Jones, PLLC
Knoxville, Tennessee office
eharrison@wimberlylawson.com