My partner and I have owned and operated our business for twenty-three years. When the pandemic first hit, we thought we could handle it like we weathered other setbacks. We pulled our team together, gave brave speeches, made promises to them and each other.
Then COVID hung on. We let some employees work from home, furloughed others and finally laid off those working from home because we couldn’t carry the payroll load. Despite the aid we received, we reached a point where we couldn’t afford to pay ourselves. The two of us haven’t paid ourselves since May 1st.
As the pandemic continued, several of our employees seemed to turn against us, holding us accountable for laying off their friends and coworkers, and acting as if we were unreasonable by insisting that the majority of them needed to work on site instead of remotely. My partner thinks we need to cut our losses and shut down. He wants us to talk with our landlord to negotiate a settlement that lets us out of our lease. We would then sell our equipment for what we can get.
I love our business, but I’ve heard rumors that employees can sue employers if they get COVID. If that’s true, I don’t see a percentage in keeping our business going.
Both employees and their families have filed lawsuits alleging that health-care facilities, retail stores such as Safeway and Walmart, and other employers have failed to protect employees from COVID-19. The employee suits demand that employers reimburse them for their medical expenses, damages, and future earnings.1 Labor unions have launched some of these suits. The Las Vegas Strip hospitality workers has sued casino operators, alleging the employers should have immediately informed employees and shut down food-and-beverage outlets when coworkers tested positive and should have adequately contract-traced before allowing coworkers of the infected employees to return to their jobs.2
Families of employees who died after contracting lethal cases of COVID-19 have sued, alleging that their loved one’s employers were grossly negligent. As one example, the family of a poultry plant employee who died has sued Pilgrim’s Pride Corporation claiming their family member contracted COVID at work.3
Employers defending against the initial sixty-nine lawsuits claim they’ve taken reasonable steps to combat COVID, including sanitizing their workplace, requiring that employees wear masks and screening employees for signs of illness. They note that it isn’t possible to know how or where employees contracted COVID-19. Many of the initial lawsuits center on whether employers adhered to state and federal guidelines such as requiring mask-wearing to protect their employees.
According to Wall Street Journal’s July 30th edition, employers have rarely been found “liable for employee deaths tied to the workplace”.4 First, plaintiffs need to meet a high legal bar in proving that their employer’s safety practices, or the lack of them, were the reason employees contracted the virus. Second, when employees become ill due to workplace exposure, it generally becomes a workers’ compensation issue, with damages capped by statute.
According to legal experts referenced in the Wall Street Journal, the pandemic may radically change how these lawsuits play out. Employers that fail to enforce social distancing, don’t adhere to mask-wearing guidance or fail to send ill workers home might be found liable particularly if a sympathetic jury finds the employers negligent.1, 3
Further, employers may face liability if the employee brings COVID-19 home and infects a family member. In several landmark cases, Courts have held that employers owe a duty of care to spouses placed at risk. As one example, the New Jersey Supreme Court allowed an employee’s spouse to bring a tort claim against an employer after suffering injury from laundering the employee’s asbestos-laden work clothes (Olivo v. Owens-Illinois).
You and your partner face a difficult, potentially lose/lose decision for both yourselves and your employees. If you decide to remain in business, you can minimize the risk of a potential lawsuit by proving you’ve taken COVID-19’s risks seriously. Have you implemented the best-known practices to protect your employees? CDC Guidance for Businesses & Employers: Plan, Prepare and Respond to Coronavirus Disease 2019 provides employers answers for reengineering their workplaces. It suggests that employers provide employees with masks and other personal protective equipment, stagger shifts, install robust ventilation or air filtration systems and implement pre-shift temperature checks to identify those who might carry the virus and send them home.
Finally, while bills in Congress address some of these issues, both employers and employees face rough days ahead.
© 2020, Lynne Curry
Lynne Curry writes a weekly column on workplace issues. She is author of “Solutions” and “Beating the Workplace Bully” and www.workplacecoachblog.com. Send your questions to her at firstname.lastname@example.org or follow her on twitter @lynnecurry10.