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Legal Ease


Corona-virus, Lawsuits, and Workers Compensation


By Richard D. Alaniz, Alaniz Law & Associates


OVID-19 cases continue to rise following record numbers of new cases reported over the past few months in California, Florida, Texas, and several other states. This recent dramatic increase in cases has caused a sluggish reopening of the economy in many parts of the country. At some point, hopefully in the near future, the reopening process will accelerate. Employees will return to their workplaces, joining those es- sential workers that have continued to work throughout the crisis. In almost every workplace, employers have been making and will continue to make, good faith efforts to keep their employees safe by strictly following the CDC/OSHA and state health agencies guidance on pre- ventative measures.


C Corona-virus Lawsuits


Ensuring that all Corona-virus preven- tive guidance is in place and being fol- lowed may be the most immediate prior- ity for most employers, but it is definitely not the only one. Since the beginning of the current Corona-virus crisis, employ- ers have understandably also been con- cerned over potential lawsuits related to COVID-19 and the anticipated wave of workers compensation claims by em- ployees who contracted the illness. Nu- merous employee lawsuits have already been filed in courts across the country, and more are sure to follow. The law- suits have included allegations that em- ployers failed to implement effective and necessary preventive measures, that their employer failed to provide adequate personal protective equip- ment (PPE), that their employer failed to promptly inform them that a co-worker had tested positive, that increased san-


48 ❘ October 2020 ®


itation procedures were insufficient, and similar claims. In cases where an employee unfortunately died as the re- sult of COVID-19, family members have filed wrongful death claims. As long as Corona-virus remains a serious threat to our health, lawsuits will be filed on be- half of those affected. There have been some efforts to


provide liability protection to employ- ers for liability flowing from Corona- virus, primarily at the state level. Sever- al states, including Alabama, Georgia, Iowa, Kansas, Louisiana, Massachusetts, Louisiana, Mississippi, North Carolina, Oklahoma, Ohio, and Wyoming have passed laws limiting liability for em- ployers from some COVID-19 related claims. Similar legislation or executive action is pending in several other states as well. In some cases, the protection is extended only to health care providers. While there have been discussions in the Senate of including a provision lim- iting liability for employers as part of any new federal stimulus package, that leg- islation appears stalled. The House and Senate appear to currently be divided on the issue, but it could still become part of a compromise stimulus bill.


Workers’ Compensation The predicted wave of Workers’ Com- pensation claims by employees infected with the Corona-virus has not devel- oped and may not for several reasons. The availability of 80 hours of paid sick leave under the Families First Corona- virus Relief Act (FFCRA) has likely been one reason that relatively few workers compensation claims have been filed. The majority of those filed have involved nurses and other first responders who


have been on the front line of the re- sponse to the infection. Workers’ Com- pensation is normally the exclusive rem- edy of employees for any illness or injury related to the workplace. It is called the “exclusivity bar” since it prevents the filing of lawsuits by employees in vir- tually all circumstances. COVID-19 is by definition a “disease.” Occupational diseases are those that arise out of and in the course of employment. Most states exclude “ordinary disease of life” from occupational diseases. Ordinary diseas- es of life include illnesses the general public is equally exposed to and are not the result of increased exposure due to the unique nature of an employee’s job. The expansive community spread of the Corona-virus means it is not unique to the workplace. The fact that the Corona-virus can


be contracted by anyone in a variety of circumstances creates the difficulty for an employee to prove that the disease “arose out of and in the course of their employment.” In an effort to avoid the likely denial of these types of claims, a number of states have revised their work- place compensation rules to provide a rebuttable presumption that employees who contract COVID-19 did so in the course of their employment if they have worked during


the pandemic. States


that have reversed the burden of proof include Alaska, Arkansas, California, Florida, Indiana, Kentucky, Minnesota, Missouri, New Hampshire, North Da- kota, Utah, Washington, and Wisconsin. In some of the states the presumption is limited to first responders. Where it is determined that Work- ers’ Compensation does not apply, the exclusivity bar protecting employers


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