COVID litigation: What HR can learn from the first wave of lawsuits.

PositionNuts & Bolts.

Since the COVID pandemic struck last March, courts have been flooded with lawsuits. These lawsuits come in a wide variety of flavors, with each offering important lessons for employers who want to avoid becoming the next target. Here are some of the top litigation triggers to help you revamp your pandemic response:

Employee exposure is likely covered by workers' comp

Generally, community-acquired illnesses like the flu or common cold aren't covered by workers' comp. And at the start of pandemic, proving that people became infected at work rather than at home or elsewhere was a big hurdle.

But since then, almost half of the states have modified their workers' compensation laws to create an assumption of workplace infection. (That assumes, of course, they were present in the workplace.)

The lesson: Expect an increase in workers' comp claims--and eventually increased premiums. Fortunately for employers, workers' comp claims are the exclusive remedy for workers (unless their employers have been grossly or criminally negligent).

Employers may still be liable for wrongful death claims

That negligence exception is a key part to the workers' comp rule. And some family members are using the exception to file state wrongful death lawsuits against employers if a worker dies.

Example: The widow of a medical worker filed a lawsuit alleging her spouse died because the facility where he worked didn't follow state pandemic mitigation rules. The widow alleges gross negligence, which puts the case outside the workers' comp system.

The lesson: Treat COVID workplace infections as possible workers' comp claims. Work with your state's insurance carrier. Also consider whether your safety measures can stand up to a claim of gross negligence.

Customer and family exposure is murkier

Your customers and employees' family members have a different avenue to sue you. They can claim gross negligence, alleging they caught COVID because your organization didn't protect employees from infection, and then they brought it home.

Example: A California woodworking company knowingly brought in workers who had just been exposed to COVID. An employee got sick, brought it home and both he and his wife were hospitalized. The wife sued, saying the company failed to take the right precautions.

The lesson: Minimize workplace infections to prevent customer and family lawsuits. Follow all current CDC, OSHA and state guidance on prevention.

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