Are employers liable for COVID-19 illness in reopened workplaces?

As some businesses slowly begin to restart operations with skeleton crews, they must observe the CDC safe conduct rules, with employees wearing masks and gloves, and common areas, such as lunchrooms, shut off. Yet what if, despite these precautions, a returning employee tests positive for the virus? What if the infection spreads, causing grave illness? Under what circumstances and to what extent is the employer liable for the occurrence of COVID-19 illness in the workplace?

The employer’s potential liability to employees could basically arise from three different sources.

  1. OSHA has a “general duty” clause that requires employers to maintain a workplace “free from recognized hazards causing or likely to cause death or serious physical harm.” OSHA has not issued any specific guidance regarding COVID-19. Obviously, many businesses have remained open and some are deemed essential. Resuming regular production, therefore, should not be an OSHA violation provided that the business takes steps to avoid the likelihood of serious injury or death.
  2. An injured employee in theory could sue an employer for negligence if it failed to exercise reasonable care in its operation of the business. Reasonable care is often measured according to industry or professional standards. So adhering to CDC guidelines would significantly reduce the risk of liability. Also, negligence claims against an employer often fail because they are preempted by worker’s compensation. Injuries that arise in the course and scope of employment are supposed to be exclusively covered by worker’s comp insurance.
  3. As mentioned above, COVID-19 illness arising from exposure at work could be a worker’s comp claim to be covered by worker’s comp insurance.

The main point is to follow CDC guidance. The most recent version of it for employers can be found here. If these guidelines are scrupulously followed, the risk of employer liability should be relatively low.

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A shareholder in the firm, Ansis focuses his practice on business litigation matters with a particular emphasis on employment, shareholder, intellectual property, franchise, fiduciary and other business disputes.