Some States Allowing Negligence Lawsuits Related to COVID-19 Infections in the Workplace

By: Meredith L. Eason

Typically filing a worker’s compensation claim is an employee’s exclusive remedy when the employee suffers an injury or illness at work. However, some states have recently been allowing employees to sue their employers under theories of negligence for serious injuries or deaths resulting from COVID-19 infections they claim were contracted in the workplace. 

In California, an employee claimed she was infected while working at See’s Candies, due to the Company’s lax safety policies. The employee passed the virus on to her husband, who died due to complications from the virus. An appellate court allowed the case to move forward, rejecting the employer’s argument that the case was barred by the worker’s compensation exclusive remedy provision. Similarly, in Florida, the estate of a Publix employee sued the grocery store alleging that the employee contracted the illness at work and died. The court denied the employer’s motion to dismiss under the exclusive remedy provision. Various lawsuits in other states have similar motions filed by employers awaiting decisions. 

However, even if an employee overcomes an employer’s motion to dismiss due to the exclusive remedy provision, the employee will face other challenges, such as problems reliably proving an infection happened at work. A law in Texas requires a worker making a claim to prove that the employer knew of, and did not warn the employee about a condition that would likely expose the employee to COVID-19, and knowingly disregarded government safety standards. The employee also has to prove, through reliable scientific evidence, that the employer’s actions led to the employee contracting the virus. Oklahoma, Alabama, and Iowa have enacted similar regulations which make it more difficult for workers to successfully bring claims against their employers related to COVID-19 infections. Many states, including Tennessee, have laws protecting businesses generally from COVID-19 lawsuits unless a claimant can prove gross negligence or willful misconduct. 

As the pandemic drags on, more lawsuits will likely be filed and more guidance will emerge from courts around the country. In the meantime, employers should not assume that any COVID-19 infection that occurs in the workplace can only be brought as a worker’s compensation claim and should continue to be vigilant about their safety protocols to limit liability and keep their employees safe.