Members Alan G. Brackett and Daniel P. Sullivan are co-writers for the “Attorney Analysis” column for Reuters Legal News. Their article, “Employer Liability for ‘Take-Home’ COVID-19 Infections,” was published on March 18, 2022. Following is an excerpt from the article, which you can continue reading on Reuters Legal News. You can also download a PDF of the entire article at the link below.
Employer Liability for ‘Take-Home’ COVID-19 Infections
In all workers’ compensation claims, the fundamental relationship is that between the employer and the employee. In that regard, workers’ compensation has always been viewed as a compromise between the employer and the employee: The employee is limited to finite benefits but is alleviated from having to prove fault on the part of the employer. The workers’ compensation claim is the employee’s exclusive remedy. This is the case regardless of the injury, be it orthopedic or occupational.
However, the novel injury of COVID-19 infection may affect a worker’s household, when the worker may infect a spouse or child, who may also become ill. Because the spouse or child would not be an employee covered by workers’ compensation, employers may face liability in tort for so-called “take-home” COVID exposure. This article explores potential employer liability in this area.
Statutory liability shields
In response to the COVID-19 pandemic, numerous states passed liability shields that require potential plaintiffs to prove elevated levels of negligent conduct on the part of a business. For example, in states such as Alabama, Arkansas, Indiana, Louisiana, Montana, and Utah, businesses are immune from civil liability unless the business engaged in any acts that constitute gross negligence, wilful and wanton misconduct, or intentional wrongdoing.
Other states, such as Florida, Nevada, North Dakota, Texas, and Wyoming, shield businesses from tort liability where there is a good- faith effort to substantially comply with government-promulgated standards in regards to COVID-19. Interestingly, the Michigan statute expressly provides civil immunity to an “employer” (and
not just a “business”) for the employee’s exposure to COVID-19, provided that the employer was operating in compliance with federal, state, and local rules, regulations, and orders related to COVID-19.
California’s See’s Candies case
Where the legislature declines to act in this area, businesses
can expect to see take-home COVID-19 litigation emerge. For example…