Healthcare Workers' Legal Options After Getting COVID-19 Due to Inadequate PPE

One of the many tragedies of the COVID-19 pandemic has been the toll it has taken on frontline healthcare workers, from ER nurses and doctors to EMTs and staff at skilled nursing facilities. When that toll includes contracting the virus at work, the time and expense of treatment and recovery can lead to financial setbacks. If that has happened to you, you might be wondering how you can get compensated for your losses, including medical bills and lost income.

Can you get workers' comp benefits for COVID-19? Can you sue your employer? Does it make a difference if you got sick because you weren't provided with adequate personal protective equipment (PPE)? This article gives a basic overview of your legal options.

Workers' Compensation for Healthcare Providers and First Responders Who Get COVID-19

Workers' compensation provides benefits for some occupational diseases. However, states often rule out workers' comp coverage for common infectious illnesses. Even if that exclusion doesn't apply to COVID-19, you usually can't get workers' comp for an infectious occupational disease unless you can prove that:

• the nature of your job creates a higher risk of exposure than the general public faces, and
• you contracted the disease while you were working and because of your job.

Most first responders and healthcare workers should be able to meet the first requirement in the context of the COVID-19 pandemic. But that same context could make it difficult to meet the second requirement, because you would need medical evidence tracing your exposure to a specific infected person or incident.

Special Workers' Comp Rules for COVID-19

Several states have made it easier for some frontline medical workers to get workers' comp for COVID-19 through new laws, emergency orders, or rules that presume COVID-19 is a work-related illness for these employees. The presumption is almost always "rebuttable," meaning that the employer can overcome it with evidence that the worker was exposed to the virus away from work (such as from an infected family member).

Most of these measures are temporary, although the period of time when they apply varies widely from state to state. Also, some provide broader protections than others. For instance:

• The presumption in a Minnesota law applies only to firefighters, peace officers, EMTs, and certain healthcare employees who worked directly with COVID-19 patients or in COVID-19 units. A similar law in Wisconsin applies only to first responders who have regular, direct contact with people needing emergency services.
• An Illinois law applies the presumption to a wider range of workers: all employees of healthcare providers, as well as first responders and some other essential workers. But employers can overcome the presumption by showing that they complied, as much as practicable, with relevant health and safety guidelines and practices. (820 Ill. Comp. Stat. § 310/1.)
• In addition to a presumption applying to first responders and certain healthcare workers, California also extended a similar presumption to any other employees who test positive during an outbreak of COVID-19 at their workplace, unless they work for very small employers. (Cal. Labor Code §§ 3212.87, 3212.88 (2020).)

Similar provisions are under consideration in a number of other states. To find out the current rules where you work, you can check with your state's workers' compensation agency.

Can You Sue Your Healthcare Employer for Safety Lapses Related to COVID-19?

In the face of national PPE shortages at various stages of the COVID-19 pandemic, most hospitals and other healthcare facilities tried their best to get enough protective gear to control the spread of the virus. But many healthcare workers complained that their employers weren't taking reasonable care to protect them. The problem has been especially acute at nursing homes and other long-term care facilities, which have faced mounting criticism for violating basic infection-control standards, and for failing to disclose outbreaks even as they refused to provide staff with PPE.

If you got COVID-19 because of your employer's negligence, you might think you should be able to sue. After all, workers' comp benefits won't cover all of your losses, and the workers' compensation system doesn't allow punitive damages to make your employer pay for its misconduct. However, there are significant obstacles to lawsuits against healthcare employers for inadequate PPE or other coronavirus-related safety lapses, especially what's know as the "exclusive remedy" rule for workers' comp.

Workers' Comp as the Exclusive Remedy for Work-Related Illness

Under the exclusive-remedy provisions in state laws, employees with work-related injuries or illnesses are limited to the benefits provided through the workers' compensation system. That means you generally can't sue your employer for your losses related to contracting COVID-19, even if your workers' comp claim is ultimately denied.

There are very limited exceptions to the exclusive-remedy rule. For example, many states allow you to sue when your employer's intentional wrongdoing caused your injury or illness. But in many states, that exception applies only when the employer actually meant to harm you, or it deliberately concealed the fact that its actions were virtually certain to cause injury or death.

In states where workers' comp doesn't cover infectious diseases like COVID-19, the exclusive-remedy rule wouldn't apply to prohibit you from suing your employer for causing your illness due to negligence.

Healthcare Providers' Liability for COVID-19

Several states have shielded healthcare facilities—including nursing homes as well as hospitals—from lawsuits by giving them qualified immunity from liability for their actions (or failures to act) related to providing COVID-19 care. Generally, these liability shields won't apply if the facilities were grossly negligent or engaged in willful or reckless misconduct. New York's law makes it clear that a facility isn't guilty of that kind of misconduct or gross negligence when its actions or omissions resulted from a "resource or staffing shortage." (N.Y. Pub. Health Law § 3082 (2020).)

Although these provisions are generally framed in terms of protecting "healthcare heroes" from lawsuits filed by patients, they arguably apply to suits filed by employees as well.

Some other states have passed laws protecting any employers from liability for their workers' on-the-job exposure to COVID-19, as long as the employers are following coronavirus-related safety rules. For example, the liability shield in a Michigan law makes it clear that isolated, minimal violations of these rules won't open the door to employee lawsuits, but that the provision doesn't affect employee rights under workers' comp laws (Mich. Comp. Laws § 408.1085 (2020).)

Other Types of Lawsuits for Lack of PPE at Healthcare Facilities

Depending on the circumstances, healthcare workers may have other legal options for seeking compensation related to their employers' actions during the COVID-19 pandemic. For example:

• Whistleblower lawsuits.If you were fired for speaking out about inadequate PPE at the hospital, nursing home, or other healthcare facility where you worked, you might have a wrongful termination claim for retaliation or whistleblowing.
• Wrongful constructive termination. In some states, you might be able to sue for wrongful constructive termination if you were essentially forced to quit because of the danger created by your employer's failure to take reasonable measures to limit the spread of COVID-19.
• Public nuisance lawsuits. Some employees have filed lawsuits based on public-nuisance laws, claiming that their employers's failure to enact basic safety precautions against COVID-19 endangered the surrounding community (while causing the employees to become ill). For example, in August 2020, hospital workers and their union filed a public nuisance lawsuit in California against HCA Healthcare and Riverside Community Hospital. They claimed that the healthcare chain had led to employee deaths and endangered the community with its "knowing and reckless" actions—such as requiring infected employees to work and not providing adequate PPE. It's not clear yet how successful these public nuisance lawsuits will be, but it might be worth speaking with a lawyer about this approach if the situation where you work warrants it.

Getting Legal Help

If you contracted COVID-19 because of your job in healthcare or emergency response—or you lost your job for reasons related to inadequate PPE or other safety precautions—an attorney experienced in workers' compensation or employment law can explain your options for seeking compensation for your losses.