Can You Sue Your Employer If You Were Exposed to COVID-19 at Work?

If you get COVID-19 on the job—and believe it was your employer’s fault—you might be wondering if you can sue for compensation. Most of the time, you’ll be limited to filing a workers’ compensation claim rather than a personal injury lawsuit. But you might have other legal options in some circumstances. Read on for details.

Workers’ Comp Might Be Your Only Recourse After Getting COVID-19 on the Job

The workers’ compensation system is a trade-off: On the one hand, you can receive benefits for a work-related injury or illness relatively quickly, without having to prove that your employer was at fault. On the other hand, workers’ comp is your “exclusive remedy,” meaning you can’t sue your employer for the losses stemming from your injury or illness (including pain and suffering). That’s true even if your workers’ comp claim for COVID-19 is ultimately denied—for instance, because you can’t demonstrate that you contracted the disease at work. And for injuries and illnesses resulting in death—the same rule applies to your survivors: They generally can’t file a wrongful death lawsuit against your employer.

Still, there are limited exceptions to the workers’ comp exclusive-remedy rule. For example, many states allow you to sue outside of the workers’ comp system when you were injured or got sick on the job because of your employer’s intentional wrongdoing, as opposed to mere negligence.

Would an Employer’s Deliberate Failure to Protect Workers from Coronavirus Exposure Open the Door to Lawsuits?

Whether you were an essential employee during shelter-in-place orders or you returned to the workplace after those orders were lifted, you might have faced an increased risk of COVID-19 exposure if your employer failed to take reasonable steps to minimize that hazard, such as:

• providing hand sanitizer, plexiglass barriers, face masks, or other personal protective equipment (PPE) appropriate for your workplace
• introducing social-distancing measures like staggering schedules and rearranging work stations; and
• rigorously cleaning and sanitizing the workplace, especially high-touch equipment.

In some industries, employers have even been accused of deliberately putting their employees in harm’s way by penalizing them for wearing their own face masks or taking time off when they’re sick.

Even though these actions—or failures to act—might be intentional, that doesn’t necessarily mean that the intentional-wrong exception would apply. In other words, even if you live in a state that recognizes this exception, and even assuming you got COVID-19 because your employer deliberately ignored basic safety protocols, you might see your lawsuit thrown out of court if you try to sue. For example:

• In several states, including New York and Arizona, the intentional-wrong exception applies only when an employer’s deliberate actions were actually meant to hurt an employee (Acevedo v. Consolidated Edison Co. of New York, Inc., 189 A.D.2d 497 (N.Y. App. Dov. 1993); Ariz. Rev. Stat. § 23-1022 (2020)).
• Other states, like Florida, also allow lawsuits if an employer knew its actions were “virtually certain” to result in the employee’s injury or death, but only if the employee wasn’t aware of the risk and the employer deliberately concealed it (Fla. Stat. § 440.11 (2020)).
• Some states use a slightly lower standard; the exception might apply when there was a “substantial certainty” that the employer’s actions would result in injury or death (Van Dunk v. Reckson Associates Realty Corp., 45 A.3d 965 (N.J. 2012)).
• Texas allows an employee's survivors to sue when the employer’s “gross negligence” caused the employee’s death, but that exception wouldn’t apply to lawsuits by still-living workers (Tex. Labor Code § 408.001 (2020)).

So your ability to get around the exclusive-remedy rule will depend on the law in your state, as well as how judges will interpret the law in the unprecedented context of the COVID-19 pandemic.

Other Lawsuits Related to Coronavirus Hazards in the Workplace

Despite the obstacles posed by workers’ compensation laws, employees (and their attorneys) are testing the waters and filing lawsuits meant to get around the hurdle of the workers’ comp exclusive-remedy rule.

For instance, the survivors of a former Walmart employee filed a wrongful death suit in April 2020, claiming that the employee died of COVID-19 complications because of the employer’s willful and wanton misconduct—failing to sterilize the store, provide the employee with PPE, and implement social distancing measures. But many legal observers have predicted that a lawsuit like this is likely to be dismissed.

Employees may have a better chance of success with other types of lawsuits related to unsafe working conditions and the risk of COVID-19 infection, such as:

• Creation of a public nuisance. Employees (and sometimes infected family members) have sued employers like McDonald's and Amazon under public-nuisance laws for endangering the community by failing to take basic safety precautions to minimize the spread of COVID-19 among employees, their families, and customers. These lawsuits typically request court orders requiring the employers to take steps to remedy the unsafe working conditions, but at least one (based on California law) requested compensation for the damages the employees suffered.
• Wrongful termination. Some workers have filed "whistleblower" wrongful termination suits claiming that they were illegally fired in retaliation for complaining about inadequate PPE or other safety measures. In other wrongful termination lawsuits, former employees alleged that they were fired for refusing to work in violation of shelter-in-place orders, in violation of doctor's orders, or in hazardous conditions.
• Wrongful constructive termination. Former corrections officers at a private immigration detention center sued their former employer, claiming they were forced to quit because they were put in danger by the lack of PPE or other measures to limit the spread of COVID-19 at a private immigration detention center.

It takes a while for cases to work their way through the court system, so it’s not clear yet how judges will view these arguments. A federal judge dismissed one public-nuisance lawsuit against a giant meat processing plant, in part to allow the Occupational Safety and Health Administration to complete its investigation of the plant's coronavirus-related safety measures. But in one of the public-nuisance lawsuits against McDonald's, an Illinois judge rejected similar arguments and granted a preliminary injunction ordering the franchise owner to provide its workers with better protection against COVID-19.

It’s also unclear how Congress and state legislatures will respond to increasing pressure to shield businesses from liability related to COVID-19.

An Attorney Can Help You Seek Compensation

If you contracted COVID-19 on the job—or you think you have good reason to sue your current or former employer because of its conduct in relation to the coronavirus pandemic—you should speak to an attorney who’s experienced in workers’ compensation and/or employment law. A lawyer who’s up to speed on the changing legal landscape related to the coronavirus should be able to explain your options for seeking compensation for the losses you’ve suffered—whether those losses came from contracting the disease at work or from taking steps to avoid that fate.