Facts to Show Exposure to COVID-19 and Establishing Worker’s Right to Coronavirus Compensation
Discoveries regarding how the Coronavirus can be transmitted continue to be revealed, with new reports this week suggesting COVID-19 can spread up to thirteen (13) feet in the air as well as being carried on the soles of someone’s shoes. For more, read “CDC: COVID-19 Can Spread 13 Feet, Travel on Shoes,” written by Carolyn Crist and published by WEBMD on April 14, 2020, citing to new research from the Centers for Disease Control and Prevention (CDC).
The CDC researchers also warn that it can take up to two weeks (14 days) for symptoms of the Coronavirus to manifest. Some people, while infected by COVID-19, show no symptoms at all (“asymptomatic”) while they remain carriers of the virus.
Factual Circumstances of COVID-19 Offer Legal Defenses for Employers
Meanwhile, essential jobs are being performed every day here in Indiana and Illinois, by workers in vital roles at grocery stores, gas stations, pharmacies, etc. as well as those providing delivery services and tending to patients suffering from COVID-19 as well as other illnesses and injuries. Their risk of exposure and contracting the Coronavirus is obviously higher than those who are working in place under “stay-at-home” orders.
Given that we know it can take up to two weeks for someone to begin having symptoms of the Coronavirus, and how easily COVID-19 can spread with some people having no symptoms and unaware they are carriers of the virus, a legal issue becomes clear to those who advocate for injury victims.
How do workers prove their employers are responsible for their contracting of the Coronavirus? Won’t companies argue that the time gap between exposure and symptoms, as well as how easy the virus moves through the air, shields them from being held liable for their employee’s injury claim?
Workers May Need Facts Proving Breach of the Duty of Care by the Employer
Of course, defense lawyers for employers across the country are working hard to find legal arguments that protect their clients from being held financially responsible for COVID-19 exposure and its resulting illness and bodily injuries. We have already warned of their work, together with insurance carriers, in pondering established legal defenses including the “Act of God” defense. See, “Coronavirus Lawsuits and COVID19 Legal Claims in Indiana and Illinois: Wrongful Death or Serious Injury.”
However, there is also the possible factual defense that will be made against the worker’s claims. Employers will likely argue that the injured employee cannot prove up their case because it will impossible for them to establish in evidence that they were exposed to the Coronavirus while at work. Perhaps their exposure was from a neighbor, or in the parking lot on the way to work, or while walking their dog around the block.
Of course, there may be no factual way for the worker to establish exactly where he or she was exposed to the Coronavirus. With our current knowledge of COVID-19, no one (or the very, very few) can point to the exact time and date of their exposure.
Does this inability to provide an exact timestamp on an employee’s Coronavirus exposure prevent a successful claim against their employer? While defense lawyers might be optimistic that it does, legally this should not be the case.
Looking at the Employer’s Actions to Support Worker’s Coronavirus Claim
Plaintiffs seeking compensation from their employers for contracting the Coronavirus may be able to prove their case by establishing with admissible evidence that the company failed in its legal duty of care to protect workers, as that duty is defined in respected safety standards.
We have discussed how OSHA has made it clear to American Employers that no new safety standards are necessary in this pandemic. Companies are to conform to the established standards of care they are already required to meet to keep employees safe from harm while on the job. They know what they should do. Read, “Coronavirus on the Job: Legal Standards for Employers to Protect Employees from COVID-19″ and “Employers’ Duty to Protect Workers during Coronavirus Outbreak.”
Proving up the violation of these defined duties of care may allow the employee to meet his or her burden of proof. This may include showing things like the following:
- If the company failed to provide protective equipment, for instance, then it may be reasonable to assume that the worker was exposed on the job because of the employer’s failure to provide face masks, gloves, access to soap and water, proper social distancing, etc.
- If workers are on the job while they have symptoms of being sick (they are coughing, they have a fever, etc.), then the company may be presumed to have allowed the employee to be exposed to COVID-19 while on the job.
- Employers that refuse to allow workers to work from home may be liable for Coronavirus claims if it can be shown they could have allowed telecommuting and working remotely but refused to do so.
In sum, workers who contract COVID-19 and suffer bodily injury as a result may never be able to establish with a certainty when and where and from whom they were exposed to the Coronavirus. This should not be an automatic, blanket defense for the company.
When employers have failed to act, or have failed to act promptly, to keep track and implement the latest safety protections, arguments will be advanced that they should be held liable for subsequent exposures based upon their failure to meet their legal duty of care.
All employers in Indiana and Illinois must understand the longstanding duty placed upon them under the general duty clause of the Occupational Safety and Health Act. Each employer must “… furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Companies that fail their workers in providing recognized protections against exposure to the Coronavirus will face aggressive advocacy in any attempt to fingerpoint at their worker-victim with a suggestion that he could have been infected elsewhere.
Particularly for those workers in front-line positions against this national crisis (think grocery store stockers and cashiers; truck drivers; health care workers; food and grocery delivery; etc.), failing to provide proper care — and then accusing the victim of contracting the virus elsewhere, is particularly offensive and unjust.
For more, read:
- Coronavirus Lawsuits and COVID19 Legal Claims in Indiana and Illinois: Wrongful Death or Serious Injury
- Coronavirus: Truck Driver Dangers of Injury and Accident in Indiana and Illinois
- Coronavirus: Limited Immunity from Health Care Liability under Federal PREP Act.
Exposure to the Coronavirus with resulting illness and fatality is a growing risk here in Illinois and Indiana. Employers must act to keep workers safe, especially those in high-risk work sites, such as grocery stores and hospitals. Please be careful out there!
