Can My Employees Sue If They Get Coronavirus?

Employees are struggling to file successful lawsuits against their employers when they catch Covid-19. The law requires employees to prove they contracted coronavirus in the workplace, but the virus is notoriously difficult to track because it spreads so widely.

Frontline workers such as those in grocery stores or health-care have a higher risk of catching coronavirus, and some of their employers are not adequately protecting their employees from getting it. However, an employee will still need to prove that they caught it in their workplace. If there is a number of employees in a workplace who get sick, it increases their ability to prove they caught it at work.

Some states cover coronavirus under workers’ compensation, but others do not. This means that if an employee gets sick or dies from Covid-19 in the workplace, they can seek financial damages. However, this stops employees from suing their workers.

Employees could argue that coronavirus is a non-occupational disease, and therefore it would be appropriate to file a tort claim rather than workers’ compensation. They could sue their employer for failure to maintain a safe workplace if there are inadequate policies and insufficient PPE and cleaning.

However, because of coronavirus being called a pandemic, gross negligence is more difficult to prove. It is necessary to prove that the employer exercised conscious misconduct or intentional harm to have a claim.

There have been over 4,000 lawsuits filed related to Covid-19, but it is a new concept, and there is no one way they are being handled. The most important thing is that employers need to provide as much protection for their employees and customers as possible.

How Can I Reopen My Small Business After Covid-19?

Small businesses should follow public health and OSHA guidelines to reopen. They can post their safety practices to help their customers feel safe.

Businesses should consider requiring employees and customers to wear masks. Even homemade masks are 80% effective in keeping out airborne particles. They can also provide hand sanitizer or gloves to customers to reduce the spread and assure customers of safety.

Where possible, employees should work remotely or work in alternating shifts to allow adequate distancing in the workplace. Common areas should be closed off or strictly monitored, and nonessential travel should be minimized.

Touch-less systems for payment and ordering are much safer. Businesses should consider an app for pre-ordering so that customers are touching their phones rather than business equipment which would need to be sanitized.

A coronavirus sick leave policy which requires employees to stay home for two weeks if they are ill is also advisable. Ill employees should be tested for Covid-19, and not allowed to return to work until they are free of symptoms for 72 hours. Provisions for elderly or at-risk workers who need to prioritize their health are important.

Businesses should prepare for increased absenteeism and have plans in place for rescheduling and cross-training.

Brad Nakase, Attorney

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