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.
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.
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:
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:
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. For instance, despite Florida's stringent standard for suing (discussed above), a Florida judge refused to dismiss a wrongful death lawsuit against Publix Super Markets, in which a deceased employee's survivors claimed that the employer knowingly failed to take proper safety measures against COVID-19 and actually prohibited its employees from wearing their own masks and gloves. The employer argued that the lawsuit should be thrown out as an attempt to get around the workers' compensation exclusive-remedy rule, but the judge disagreed.
Just in case the workers' compensation exclusive-remedy rule wouldn't be enough to prevent lawsuits by employees who get COVID-19 at work, some states have passed laws that shield employers from liability for their workers' on-the-job exposure to the coronavirus. Some of these laws apply only to healthcare facilities (as in New York), while others apply to all employers (as in Michigan). These liability shields include exceptions, such as willful misconduct, gross negligence, or failing to comply with governmental safety rules related to COVID-19. (N.Y. Pub. Health Law § 3082 (2020); Mich. Comp. Laws § 408.1085 (2020).)
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 example:
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.