Worker’s Compensation Exclusivity—A Remedy for COVID-19 Claims?

Businesses of all types, essential and non-essential alike, are reopening under a myriad of guidelines from our cities, states, and federal governments. As employees return to work, employers face new challenges due to the risk of exposure to the coronavirus in the workplace. Although questions still need to be answered, employers may be able to rely on their jurisdiction's worker’s compensation law to avoid, or at least minimize, liability for COVID-related claims from employees.

Generally, an employee pursues a claim for an injury or occupational disease incurred at work under the state’s worker's compensation system. No-fault provisions in worker's compensation statutes excuse injured workers from proving their employers were at fault in causing their injury. In exchange for that guaranteed coverage, employees forfeit the right to initiate further litigation for negligence against the employer. The exclusionary effect of worker’s compensation is commonly referred to as the “worker’s compensation bar” since the system becomes the employee’s only source of remedy for the injury or occupational disease. However, there are exceptions to the exclusivity bar that permit the employee to pursue a claim for damages directly against the employer despite the existence of workers’ compensation coverage. Though varying from state to state, the exception typically requires the injured worker to show the employer’s conduct was beyond simple negligence. Instead, the exception requires demonstrated tortious conduct, i.e. that the employer intended the injury or had actual knowledge that an injury was certain to occur. How the courts will interpret that standard in regards to COVID-19 claims remains muddled given the ever-evolving preventative directives and the lack of a clearly defined duty to prevent the spread of COVID-19 in the workplace.

Employers will have to wait to see if worker's compensation laws will provide the exclusive remedy to an employee who alleges COVID-19 infection from work. In the meantime, the best factual defense to a potential employee action is to develop appropriate procedures to mitigate the risks of the virus. Employers should carefully adhere to and document their social distancing restrictions and other preventative measures provided by the CDC and similar state and local emergency orders. By doing so, employers will be in a better position to demonstrate their actions satisfy any alleged duty of care.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.