When it comes to the dangers of getting COVID-19 at work, much of the focus has rightly been on healthcare providers. But even if you’re not a nurse or doctor, you could get infected on the job—whether at a grocery store, warehouse, meat processing plant, or any other workplace that presents a risk of exposure to the novel coronavirus. And if your employer didn’t take reasonable safety precautions to protect you and your coworkers from infection, you might be tempted to sue.
There are legal hurdles to suing an employer outside of the workers’ compensation system for getting sick because of your job—even though it will probably be difficult for most employees to get workers’ comp benefits for COVID-19. But in some limited circumstances, you might be able to clear those hurdles and proceed with a legal action against your employer.
When you’re hurt or become sick because of your job, you’re generally limited to the benefits you can get through workers’ comp—meaning you aren’t allowed to sue your employer to seek compensation that would cover all of your losses, including pain and suffering. (Usually, this “exclusivity” rule would also apply to wrongful death actions by survivors of employees who died as a result of a work-related illness, such as healthcare workers who died for lack of personal protective equipment, or PPE.)
There are exceptions to the exclusivity rule. These exceptions vary from state to state, but they generally include circumstances in which:
If you live in a state where workers’ comp doesn’t cover infectious illnesses, the workers’ comp exclusivity rule might not prevent you from suing your employer for contracting COVID-19 on the job.
Many workers have complained that their employers put them at an increased risk of exposure to the coronavirus by, for example:
In the midst of a global pandemic, would these kinds of missteps qualify for an exception that would allow you to sue your employer if you became sick as a result? The answer depends on the laws in your state—and how courts interpret those laws.
In several states, the "intentional wrong" exception doesn’t apply unless the employer’s actions were specifically meant to harm employees. That could be nearly impossible to prove in the case of an employer’s failure to provide enough protection from a highly infectious disease like COVID-19.
In other states, the standards for the exception are more nuanced. For example, the New Jersey Supreme Court has held that the employer doesn’t necessarily have to mean to cause harm; instead, the exception may 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)).
It’s also not clear how judges will view this exception in the context of COVID-19 and the evolving guidelines from government agencies and authorities—including orders from state and local authorities for businesses to take certain measures to help prevent transmission of the disease.
Despite the hurdles to suing your employer outside of the workers' comp system, several states have passed laws to give employers further protection from liability when their workers are exposed to COVID-19 on the job. Some of these laws apply only or primarily to healthcare providers, while others extend the liability shield to all employers. But they include some exceptions. For example:
(Mich. Comp. Laws § 408.1085, Ohio H.B. 606 (2020).)
You May Sue If You Contracted COVID-19 While Working on a Cruise Ship
If you got COVID-19 while working as a crewmember or other qualified employee on a seagoing cruise ship, a federal law known as the Jones Act gives you the right to sue your employer for negligently failing to provide a reasonably safe place to work. In one example of how the Jones Act could be used in the context of COVID-19, employees of Celebrity Cruises filed a class-action lawsuit claiming that the cruise line failed to take basic safety precautions, like requiring social distancing or providing workers with facemasks, even after the company knew that COVID-19 was probably spreading on board its ships (Nedeltcheva v. Celebrity Cruises, Inc., Case # 1:20-cv-21569, U.S.D.C. S.D. Fla.). Learn more about the requirements and possible compensation in COVID-related lawsuits by cruise ship employees.
If you haven’t gotten COVID-19 yet but are concerned that conditions at your workplace put you at heightened risk, you should raise the issue with your employer. If that doesn’t lead to concrete changes, you can try filing a complaint with the federal Occupational Health and Safety Administration (OSHA). Although critics agree that OSHA's response to COVID-related complaints has been inadequate, taking this step could provide you with some protection. Under federal law, your employer is not allowed to discipline you, fire you, or engage in any other form of retaliation against you for filing an OSHA complaint.
You have workplace rights during the COVID-19 pandemic, including the right to refuse to work under hazardous conditions if you’re in imminent danger. And if you’re fired for taking that step, you might have grounds to sue your employer for wrongful termination. In some states, like California, you might also have grounds to sue for wrongful constructive termination if you were essentially forced to quit because your employer created an unsafe work environment—a tactic used in lawsuits filed by former corrections officers at a private immigration detention center.
Public Nuisance and Other Lawsuits Aimed at Forcing Employers to Take Safety Measures Against COVID-19
Some workers have used state public nuisance laws to sue their employers for endangering the public by failing to take steps—like social distancing, sanitizing, and providing employees with facemasks—to prevent the spread of COVID-19 among employees, their families, and the community at large. In at least two of these lawsuits (in Illinois and California), judges issued preliminary injunctions ordering McDonald's franchises to take specific protective measures. Meanwhile, however, a federal judge in New York dismissed a public nuisance lawsuit against Amazon, saying that it's up to OSHA rather than the courts to decide whether the employer was doing enough to protect its warehouse workers.
Workers have also used state laws on unlawful business practices to sue employers for failing to comply with public health directives on workplace safety. In at least one of these suits, against a large poultry processor in California, the judge issued a preliminary injunction ordering the employer to take certain safety measures.
As with everything related to the pandemic, your legal options if you contracted the virus at work may change—depending in part on what courts decide in response to early lawsuits, actions by states to make it easier for some employees to get workers’ comp benefits for COVID-19, and how the federal government responds to pressure from businesses to shield them from lawsuits when their employees get sick with the virus.
So if you believe you contracted the disease on the job, your best bet is to speak with a lawyer. An attorney who’s experienced in workers’ compensation and/or personal injury should be able to explain how the law currently applies to your situation and lay out your options for seeking compensation for your losses.