Berenson: The COVID Worker Lawsuits Are Coming (Or Are They?)

Some states and congress contemplating additional business protections but they may not be needed.

authors D.S. Berenson | December 16, 2020

Newspapers and employment law firms have been quick to warn of the impending flood of litigation by employees filing lawsuits claiming businesses have not done enough to keep workers and their families free from the coronavirus. Indeed, lawsuits have already been filed against high-profile businesses such as Amazon and McDonalds.

Other workers have begun filing claims through the state workers’ compensation system and the AFL-CIO, the biggest U.S. labor federation, sued the Department of Labor for refusing to issue workplace rules for coronavirus, and, in their words, putting employees in “grave danger.”

Home improvement legal expert D.S. Berenson of Berenson LLP

Credit Suisse recently estimated COVID-19 would result in an additional $5 billion in workers’ comp claims while leading labor law firms have warned that businesses will face litigation. For example, canvassers and installers may claim they were recklessly forced to work and remodelers were negligent in running leads and installs.

Concerns over this risk have led to more than a dozen states, including Ohio, Georgia, North Carolina and Tennessee, enacting immunity legislation which protects businesses lawsuits alleging COVID-19-related injuries – unless the worker can demonstrate the employer engaged in reckless or intentional misconduct that led to the infection. Another dozen states are considering comparable legislation.

One of the primary reasons Congress can’t agree on another coronavirus relief bill is because Republicans want it to include some form of the so-called “Safe to Work Act” which grants similar immunity for businesses across the U.S. —and the Democrats do not.

Truth be told, however, this is likely to turn out to be something of a red herring, akin with the much feared and eventually non-existent Y2K computer disaster. Why? Well, on one hand, workers’ compensation in many states simply doesn’t apply to infectious diseases, and so far, labor attorneys have had a hard time changing those policies (although New York’s Governor Andrew Cuomo did state that claims in his state will be covered under workers’ comp law).

On the other hand, it is almost impossible to tie medical or legal liability back to a remodeler or a jobsite. Meaning, in other words, that we see almost no real concern that someone could prove they were infected by COVID-19 because of a contractor’s policies. Quite literally, the worker would need to show they were in quarantine for 7-10 days before they canvassed or ran an install for us, and then they went back into quarantine for another week or so, and then they came down with COVID-19. So, despite the fear-mongering and law firm warnings, don’t panic just yet.

Of course, care must also be taken not to set ourselves up for such suits, regardless. Fourteen states (California, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New York, New Jersey, Nevada, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, Virginia and Washington) have enacted ordinances designed to force businesses to protect its workers from the coronavirus.

These ordinances usually require businesses to implement a variety of measures, including in-office social distancing, mandatory face mask use within social-distancing thresholds, improved office ventilation, providing employees with regular access to hand-washing facilities and sanitizer and mandating deep cleaning protocols after COVID-19 cases are discovered in the workplace.

These requirements are usually enforced by the state’s departments of labor or health or the Office of the Attorney General. Non-compliance can result in fines from a few thousand dollars to upwards of $100,000 for willful violations, but the real risk may be that breaching these requirements can certainly add fodder to the threat of meritless lawsuits by workers claiming they were infected due to their employer’s conduct. QR

D.S. Berenson is Managing Director of Berenson LLP, a law firm that specializes in home improvement management issues.

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