Can I Sue My Employer for Not Protecting Me From Coronavirus?

When it comes to the dangers of getting COVID-19 at work, much of the initial focus was 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 virus. And if your employer didn't take reasonable safety precautions to protect you and your coworkers from infection, you might be tempted to sue.

In this article we'll cover:

• when you might be able to step outside of the workers' compensation system and sue your employer for failing to protect you from COVID-19
• when your family members might be able to sue your employer for "take-home" COVID-19 infections
• COVID-19 shield laws and
• legal strategies to protect yourself from COVID-19 at work.

When Workers' Comp Laws Rule Out Lawsuits Against Employers

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. Workers' compensation is generally considered the "exclusive remedy" for employees and their survivors.

Exceptions to the "exclusive remedy" rule vary from state to state, but they generally include situations in which:

• your employer doesn't have workers' comp insurance
• someone other than your employer (a "third party") caused your illness, or
• you became ill because of your employer's intentional wrongdoing, not just negligence (carelessness).

Lawmakers in some states have taken action to extend workers' compensation coverage to include COVID-19 as a work-related illness for various types of workers, typically first responders, healthcare workers, and essential workers.

If you live in a state where workers' compensation doesn't cover workers impacted by COVID-19 in your industry, the workers' comp exclusive remedy rule might not stop you from suing your employer for contracting COVID-19 on the job.

So Could I File a Lawsuit Against an Employer Who Deliberately Ignored Safety Measures?

Many workers have complained that their employers put them at an increased risk of exposure to the coronavirus by, for example:

• failing to provide adequate masks or other appropriate PPE
• refusing to take reasonable steps like rearranging the workplace and schedules to allow adequate social distancing from coworkers and customers, or
• failing to close a facility for sanitizing after some employees tested positive for the virus.

In the midst of a global pandemic, would these kinds of missteps allow you to sue your employer if you became sick as a result? The answer depends on the laws in your state, how courts interpret those laws, and ever-evolving guidelines from government agencies and authorities. If you have questions about if, when, and where to file a lawsuit after contracting COVID-19 at work, talk to a lawyer who is up to date on the latest developments in employment and personal injury law in your state.

Employer Liability for "Take-Home" COVID-19

Many people who work in places like airports, warehouses, and offices, worry about bringing the virus home with them and spreading it to their families. Can an employer be liable when a worker's spouse or child gets sick after the worker is exposed on the job?

Lawsuits claiming that workers brought COVID-19 home and infected family members are called "take-home" liability cases. The take-home theory was developed in cases involving secondary exposure to workplace asbestos. As of late 2022, dozens of take-home COVID-19 cases have been filed across the country with the California Supreme Court set to take up the question in Kuciemba v. Victory Woodworks.

Special Liability Shields Protect Employers From COVID-19 Lawsuits

In an attempt to return to business as usual, thirty or so states passed laws in late 2020 and early 2021 designed to protect businesses from COVID-19 lawsuits filed by workers, customers, and vendors.

These COVID-19 shield laws generally protect businesses from lawsuits that try to hold them legally responsible for a person's COVID-19 infection, unless the person suing can prove gross negligence, willful misconduct, or failure to follow public health orders. The specific details of the laws vary from state to state.

Lawmakers have described COVID-19 shield laws as protecting businesses from lawsuits by employees, even though workers' compensation laws already block many employees from filing lawsuits over workplace illnesses and injuries. Critics argue that shield laws encourage employers to be lax about following health and safety guidelines that protect workers from the virus.

Other Legal Options to Address Coronavirus Hazards at Work

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.

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 to protect workers from COVID-19.

Changes Ahead and Getting Legal Help

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 lawmakers respond to pressure from businesses to shield them from lawsuits when their employees get sick with the virus.

If you believe you contracted the virus on the job, your best bet is to speak with a lawyer. An attorney can explain how workers' compensation and personal injury law currently applies to your situation and lay out your options for seeking compensation for your losses.