Plaintiffs’ attorneys are advertising for plaintiffs infected by COVID-19, and new COVID-19 personal injury lawsuits are being filed at a steady clip. In recent lawsuits, for example, employees and customers have sought to recover for financial and emotional damages caused by long-lasting COVID-19 symptoms and, in some cases, death. These developments suggest that companies will likely see increased personal injury litigation alleging the transmission of COVID-19. Below are some common questions and considerations about this new type of litigation. 

If an employee sues for an alleged workplace transmission of COVID-19, does workers’ compensation exclusivity apply? 

State laws vary greatly as to whether illness or death from COVID-19 is exclusively covered by state workers’ compensation programs. A few states, such as California, adopted a rebuttable presumption that certain categories of workers are presumed to have contracted a workers’ compensation occupational disease if they become ill with COVID-19. Most states have not adopted a rebuttable presumption and allow employers to deny claims where the employee’s infection more likely occurred outside of work, such as during a period of extensive community spread. Even if an employee’s workers’ compensation claim is denied, employers may argue that state exclusive remedy protections bar tort claims outside the workers’ compensation system.

However, many states recognize an exception to workers’ compensation exclusive remedy protections in instances of gross negligence or intentional harm. Recent COVID-19 personal injury complaints filed in state or federal courts attempt to fit within these exceptions by alleging that employees were denied access to adequate personal protective equipment, or that employees received false information about the safety of the workplace and the likelihood of contracting COVID-19 at work. Regardless of whether these allegations are true, they are designed to circumvent workers’ compensation exclusive remedy provisions. 

Is there tort immunity for companies that follow mitigation guidelines? 

A few states have passed laws limiting tort liability for in-state businesses. To date, Idaho, Nevada, North Carolina, Oklahoma, Utah and Wyoming have passed laws granting some measure of immunity to businesses for injuries related to the transmission of COVID-19, and legislation is pending in many other states and at the federal level. These laws vary greatly as to the types of businesses covered and the extent to which businesses must follow local health department guidance to qualify for the immunity. In addition, immunity may not apply in cases where plaintiffs allege gross negligence or intentional torts — the same types of allegations that may create an exception to workers’ compensation exclusivity. Many of the complaints already filed contain similar allegations of intentional wrongdoing by the defendant businesses. 

How soon do injured workers or customers need to file their personal injury lawsuits? 

Most states require civil tort claims be filed two years after injury; a few states extend the statute of limitations to three years. For injuries or deaths occurring early in the pandemic, the statute of limitations will not begin to run out until March of 2022, meaning companies will continue to face potential litigation for several years after the pandemic subsides. 

What can I do to prepare my business for potential lawsuits? 

While there’s no way to prevent exposure to potential lawsuits alleging workplace COVID-19 exposure, there are some steps that can reduce that risk and position a business to successfully defend a lawsuit. Those include:

• Following Occupational Safety and Health Administration (OSHA), Centers for Disease Control and Prevention (CDC), and state and local requirements and guidelines, which continue to change over time 

• Creating and updating a written COVID-19 prevention plan and policies that document measures taken and when 

• Responding promptly to employee complaints about COVID-19 safety and documenting those complaints as well as the company’s response 

• Staying abreast of what others in your industry are doing and employee claims they may be facing

Legal developments are rapidly changing as the pandemic unfolds, and understanding evolving regulatory requirements, industry best practices and litigation trends are key to effective preparation.