While numerous states are acting to expand the scope of their respective workers’ compensation systems to embrace COVID-19-related workplace exposure claims, a persistent drip of tort claims threatens to breach the exclusive remedy bar. Will courts open the floodgates?

Most recently, on May 7, 2020, a lawsuit was filed in Pennsylvania on the behalf of the estate of a meatpacking employee who contracted a COVID-19-related illness and died in early April. The suit includes claims for negligence, wrongful death, and fraudulent misrepresentation. This case is just the latest example of why employers, many of which operate in states that are rapidly reopening, find themselves facing uncertainty as to whether their potential liability for workplace exposure to COVID-19 may extend into the costly and unpredictable realm of tort litigation. The pertinent questions for employers are (1) what might be the legal basis for those claims, and (2) what can be done to proactively mitigate the threat.

The Potential Exceptions to the Rule

Almost every state makes participation in its workers’ compensation system a mandatory condition of doing business in the state. While workers’ compensation is established by state statute, and must therefore be addressed on a state-specific basis, the states almost uniformly establish workers’ compensation as an exclusive remedy for employee injuries. However, there are a number of exceptions to the exclusive remedy rule. Perhaps two of the most applicable potential exceptions in anticipated COVID-19 scenarios are the following.

First, many states recognize an exception for injuries caused by various degrees of alleged employer misconduct. Depending on the state, the threshold may be as low as gross negligence, or as high as deliberate intent to harm.

Second, most workers’ compensation statutes recognize a distinction between an occupational injury and an occupational disease. Again, precise statutory definitions vary, but generally, an occupational disease will be determined by whether the employee’s condition arose out of and in the course and scope of employment, as well as whether the infection was caused by conditions peculiar to the work such that the work created a greater risk of contracting the illness and in a different manner than that faced by the public in general. Under this general standard, such an “ordinary disease of life” is usually not compensable under workers’ compensation statutes.

Stemming the Tide

The COVID-19 pandemic has given rise to uncertainty on all fronts, and neither the workplace nor the courts are exempt from the challenges. Attempts by plaintiffs to bring tort claims for workplace exposure will present novel issues and untested theories. So how may an employer best position itself?

In any tort claim, key factors that are determinative of liability are the behavior of the defendant and the question of causation. The good news is that employers can address both of these issues in the same way: by staying up to date on, and promptly implementing, the recommendations of the various authoritative government agencies, such as the U.S. Centers for Disease Control and Prevention (CDC) and the federal Occupational Safety and Health Administration (OSHA). The courts, when faced with behavior in a tort case where a novel theory of liability is presented, will seek guidance on the standard of care. Currently, governmental agencies and public health authorities that are charged with protecting the public and employees during the COVID-19 pandemic are reliable sources of the latest developments on the disease.

Regarding causation, under state law, a plaintiff must prove that it is more likely than not that he or she became infected by exposure to COVID-19 at work, not elsewhere. The “more likely than not standard” will be critical because in most instances it is virtually impossible to prove with certainty where and how an individual was exposed during a global pandemic. Plaintiffs’ lawyers may be forced to offer comparisons between their clients’ work environments and the other aspects of their daily lives. An employer that is able to show that it implemented recommendations from CDC and OSHA guidance in their workplaces will likely have a greater chance of refuting an employee’s position that the workplace, and not another unpredictable incident of life in the time of a pandemic, was the source of infection.

An employer also may want to document its efforts to make the workplace safe. If and when the time comes, it is important not to leave room to dispute what the employer did or did not do to protect its employees.

Finally, legislative efforts are being made at the federal and state levels to afford protections to employers from tort liability, and the progress of these efforts will want to be closely monitored.