COVID-19: Lawsuits Against American Employers are Rising
Coronavirus-related litigation continues to rise against American employers as offices and worksites reopen. The result? Workers may be at heightened risks of infection and spread even as HR teams manage COVID-19 workplace regulations. What can employers do to protect against this rising trend in lawsuits?
What’s the Story?
San Francisco-based law firm Littler Mendelson published a September 2020 blog detailing the concerning rise in COVID-19 labor and employment litigation. Since March 12, filings have increased steadily, with the most common complaints focused on retaliation, wrongful termination, workplace safety, leaves of absence, and discrimination.
This trend likely won’t fade anytime soon. Reuters reported on Sept. 28, 2020, that “take home” lawsuits from coronavirus infections could cost employers billions of dollars in legal damages. These claims stem from workers contracting COVID-19 at work, bringing it home, and subsequently infecting relatives.
The same article indicates that while the American workers’ compensation system “generally makes it difficult for workers to sue for COVID-19,” non-employees such as family members are permitted to sue companies for damages. (This is most commonly seen in asbestos litigation.)
Can Employers Be Sued by Workers Who Get Exposed on the Job?
In short, yes. But, it depends on where your business is located.
According to the Occupational Safety and Health Administration (OSHA), federal law indicates that workers “are entitled to a safe workplace,” and that employers “must provide a workplace free of known health and safety hazards.” Despite their current relevance, these protections were put into place long before COVID-19 began its spread across the country.
In some states, legal shields against coronavirus lawsuits have worked their way through legislatures or already passed. Other states have passed laws granting immunity for healthcare workers and facilities, including nursing homes. However, without clear protections or guidelines, many employers outside of these industries have adopted liability waivers to protect against lawsuits.
In an article published by The National Law Review, author Seta Accaoui explains that waiver enforceability varies from state to state. Accaoui goes on to say that in some states, “liability waivers can be entirely unenforceable.” In others, waivers can’t protect against “gross negligence, reckless, willful, or wanton conduct or intentional acts.”
What Can Employers Do to Protect Against Lawsuits?
Depending on the industry, waivers can offer some level of protection against lawsuits by explaining the risks guests or customers face by entering or purchasing from a given business. Still, because COVID-19 waivers have largely been untested in court, there's a chance they won't completely eliminate liability.
When employers and HR teams take the appropriate, legal steps to protect their employees and customers—including following CDC guidelines for safe workplaces—they can help mitigate the risk of outbreaks in their workplaces and subsequent lawsuits. It’s also essential that businesses follow industry-specific safety guidelines, as certain worksites may vary greatly from others.
Likewise, teams must adhere to the rules laid out in relatively new, coronavirus legislation like the Families First Coronavirus Response Act (FFCRA). For example, the FFCRA established expanded paid family leave rules, as well as enhanced paid and unpaid sick leave regulations.
Both of these expansions were established to protect workers and workplaces. When employers violate laws such as these, they can put themselves at heightened risk of litigation from current and former employees.
COVID-19 is an ever-evolving issue with near-countless considerations and complications. As always, it’s recommended that HR professionals stay up-to-date with coronavirus-related news, regulations, guidelines, and laws.
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