Are Hawaii's Businesses Facing a Wave of Future Covid-19-related Workplace Safety Lawsuits?

• Publication year: 2020

Are Hawaii's Businesses Facing a Wave of Future COVID-19-Related Workplace Safety Lawsuits?

By Christopher J. Cole

As Hawaii reopens its economy in the midst of a global pandemic, business leaders may find that workers who had been sheltering at home are now afraid to return to work. Employers may wonder if employees can sue them for contracting COVID-19 while on the job. Unfortunately, among the many legal perils employers must navigate in 2020 lurks the prospect of what some fear may be a torrent of COVID-19 litigation, including allegations that an unsafe workplace forced workers to make the untenable choice between their safety and their jobs. Thus far, Hawaii has among the lowest infection and fatality rates in the country However, the virus might rebound once Hawaii reopens to tourism in an effort to reboot our economy. In addition, COVID-19 has heightened public awareness about the risks of infectious diseases generally. This article discusses the potential civil liability in Hawaii outside of the workers' compensation system arising out of an employee's injury or death from an infectious disease allegedly contracted at work.

Civil Lawsuits and the Workers' Compensation Exclusivity Bar

The starting point for evaluating non-workers' compensation liability exposure in this context is, ironically enough, Hawaii's Workers' Compensation Law (WCL).¹ That is because the exclusivity of workers' compensation remedies provides the first line of defense against any personal injury lawsuit for alleged workplace exposure to a communicable disease.

Under the WCL, "rights and remedies herein granted to an employee or the employee's dependents on account of a work injury suffered by the employee shall exclude all other liability of the employer to the employee, the employee's legal representative, spouse, dependents, next of kin, or anyone else entitled to recover damages from the employer, at common law or otherwise . . .."² Hawaii patterned this provision after the "New York" model, which offers the broadest immunity among the three alternative formulations prevailing in the United States.³

The Hawaii Supreme Court has called the workers' compensation exclusivity defense the "keystone" of the social compact underlying the WCL.⁴ Through this bargain, employees and their heirs receive a prompt and certain, but limited, remedy for work related injuries or deaths without having to prove fault. In exchange, they cannot pursue common-law remedies that are less certain but potentially more wide-ranging and costly for employers to defend.⁵

Without the protection of the workers' compensation exclusivity defense, employers in Hawaii could otherwise be subject to liability under tort law for claims sounding in negligence, wrongful death, loss of consortium, or similar causes of action. Such lawsuits may be uninsured, inasmuch as they are brought outside of the WCL remedial scheme. Fortunately for employers, Hawaii's appellate courts have repeatedly rejected creative arguments by claimants seeking to limit or evade the WCL's exclusivity bar for pursuit of various intentional torts, emotional distress, "dual capacity" claims, and others.⁶

Applicability of the Exclusivity Defense to Infectious Diseases

The workers' compensation exclusivity defense applies when a lawsuit asserts a claim arising out of a "work injury suffered by the employee."⁷ The WCL defines "work injury," in turn, to include "personal injury . . . by disease proximately caused by or resulting from the nature of the employment."⁸ That begs the question: Can a global pandemic coursing through the entire community truly give rise to a "work injury" covered by workers' compensation? The case law has evolved on this point, but the short answer is, yes, it could.

Many states have adopted a rule narrowing workers' compensation coverage to only those "occupational" diseases to which an employee is especially vulnerable due to the nature of his or her job. On the other hand, this rule would exclude as "non-occupational" those diseases for which the particular workplace exposure is no worse than the baseline general risk faced by other workers or the public at large.⁹ As the California Supreme Court explained, the "narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms."¹⁰

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By contrast, Hawaii has historically applied a more liberal "unitary" test in which a work injury, including a physical or mental disease, is deemed compensable so long as there is a reasonable connection to working conditions.¹¹ In Lawhead v. United Air Lines,¹² for example, the Hawaii Supreme Court applied this more liberal test to hold that a flight attendant who claimed to have contracted influenza while on a layover suffered a compensable work injury under the WCL.

The Supreme Court in 2000 appeared to narrow this liberal unitary rule with regard to infectious diseases in the case of a dental hygienist who contracted Hepatitis C while working for one of three successive employers, in Flor v. Holguin.¹³ The Flor court held that a "work injury" occurs when the disease: (1) is caused by conditions peculiar to the particular trade or employment; (2) results from an actual exposure to such working conditions; and (3) is due to causes in excess of the ordinary hazards of employment.¹⁴

However, more than a decade...