Preparing for a Landslide of Covid-19 Liability Claims
Dan Levenson June 15, 2020
As the business community reopens, and the “new normal” begins, new issues and dilemmas will surface. Civil, administrative and criminal liability claims will likely increase as people analyze health and safety rulings, seek compensation for losses.
There is no precedent, no established jurisprudence, no rules by which to clearly determine liability regarding the circumstances of many cases that will arise. Federal legislation is in the works to protect some types of businesses from certain COVID-19 related claims, but at this time it remains to be seen which proposals will pass. Following are some thoughts on what to expect, based on the status of the situation at present.
General Types of Liability Charges
COVID-19 Virus Exposure Related Claims
When businesses reopen, the incidence of employees citing workplace conditions as causes of COVID-19 cases will no doubt increase. Administrative issues may be targeted, such as lack of sufficient Personal Protective Equipment (PPE), such as masks and gloves. Other workplace conditions may be cited also. The Occupational Safety and Health Administration requires that employers provide employment and a place of employment free from hazards that are causing or are likely to cause death or serious physical harm. Of course, some questions regarding workplace conditions that may or may not increase contribute to the spread of COVID-19 are subject to debate and legal rulings which will then set precedents. Here’s what OSHA has to say about COVID-19.
State laws may apply to this category of claim, if the charge is directly related to conditions of employment. Workers compensation may cover the claim. Some workers comp policies, however, exclude coverage for common illness- “ordinary diseases of life” like flu. Legal rulings would be required to determine whether COVID-19 is considered an “ordinary disease” or a direct hazard of the job.
Some states are considering legislation to formally expand workers’ compensation coverage for COVID-19 for certain occupations like healthcare workers and emergency responders.
In some cases, customers may claim they contracted COVID-19 from an employee. The burden, however, would be for the claimant to prove causation, when the virus could have been contracted at many other locations. Genetic tracing is a promising technology for tracking exposure and establishing the source of the disease, but is likely too costly at present, for most cases.
Cases Involving Third Party Charges
Complex cases may arise involving a mix of organizations/groups. Many of these may not receive hearings, as the burden of proof is too great.
Criminal Liability Claims Related to COVID-19
The Department of Justice recently issued guidance stating that COVID-19 meets the statutory definition of a “biological agent” and cases of purposeful exposure and infection of others with COVID-19 could be prosecuted under federal terrorism statutes.
A Sussex County, New Jersey nursing home was in the news after 17 bodies were found piled up inside a makeshift morgue inside the facility. Some called for criminal investigation and prosecution, but the movement was stifled as others quickly attempted to put in place civil and criminal immunity for health care facilities and providers caring for COVID-19 patients.
Proposed Bills to Create Immunity
The “Facilitating Innovation to Fight Coronavirus Act” proposed to Congress is designed to preempt federal and state law to protect healthcare providers who modify medical devices for unapproved use, out of scope practice, testing, treatment.
Senator Mitch McConnell (R-Ky) with the support of the United States Chamber of Commerce hopes to pass legislation providing immunity from “opportunistic lawsuits” to even non-healthcare employers.
Following local guidelines for reopening your category of business and staying up to date on court rulings and legislation are essential for preventing lawsuits as the pandemic progresses. At Insure Your Company.com, we do more than sell insurance. We help you succeed in business. Contact us for assistance in figuring out the best plan for your enterprise in these challenging times.