Indiana currently leads the nation in Coronavirus cases, with news media describing the Hoosier State as one of the country’s “hotspots” for COVID-19 here in the last few weeks of 2020. So far, Indiana tallied over 1000 new COVID-19 cases each day in December per million people, and was the only state to do so according to the Atlantic’s COVID Tracking Project. Read, “After Thanksgiving, Indiana Led Nation with 1000-plus COVID-19 cases per Million People,” written by Shari Rudavsky and published by the Indianapolis Star on December 8, 2020.
Indiana Governor: State is “On Fire,” New COVID Restrictions Issued
Governor Eric Holcomb has issued new COVID-19 orders for the State of Indiana, effective December 16, 2020, through January 3, 2021. During his weekly press conference, Governor Holcomb described the current situation as serious, stating that “the State of Indiana is on Fire.”
Hoosiers will have social gatherings limited to their particular county’s COVID status with the Indiana State Department of Health (ISDH), ranging from a limit of 25 people in any Indiana county rating “red” to a maximum of 250 people for counties labelled “blue” by the state health officials. Fan attendance at college and pro sporting events is limited to 25% capacity. Also, non-emergency inpatient medical procedures must be delayed for three weeks.
Read, “Gov. Holcomb Announces New Statewide Limits, Directive to Suspend Non-Emergency Procedures: ‘The State Is on Fire’,” written by CBS4 News and published by CBS4 News – Indianapolis on December 9, 2020.
The face mask requirement for Hoosiers remains unchanged.
Statewide Face Mask Orders for Indiana and Illinois
To date, both Indiana and Illinois have statewide mandates requiring the wearing of face masks as a means of “stopping the spread” of COVID-19. See, “With Some Holdouts, States Overwhelmingly Require Masks,” written by Katherine Snow Smith and published by the Legal Examiner on December 9, 2020.
In Indiana, the current COVID-19 mask requirement is that anyone over the age of 8 years old must wear a face mask (1) indoors when in a public place, and (2) outdoors when it is not possible to maintain a social distance of six (6) feet.
Comparatively, Illinois requires anyone over the age of 2 years old to wear a face mask in public when unable to maintain six (6) feet of social distancing.
The ISDH is promoting a social media campaign as “#MaskUpHoosiers,” explaining:
Indiana is dealing with increased COVID-19 spread and a resurgence of the dangerous virus, which means the fight against it is far from over. Wearing a face mask is one of the simplest, most effective ways to slow the virus’s spread. Wearing a mask provides some protection to you and also protects those around you, in case you are unknowingly infected with the virus that causes COVID-19. That’s why we need all Hoosiers to do their part to help slow the spread. We’re asking each of you to mask up — and speak up about how wearing your mask can save lives.
December 2020: CDC Changes Face Mask Guidance to Universal Face Masking
Meanwhile, the Centers for Disease Control and Prevention (CDC) has issued new guidance for face masks during the Coronavirus Pandemic. As of December 4, 2020, the CDC is recommending the “universal use of face masks.” Honein MA, Christie A, Rose DA, et al. Summary of Guidance for Public Health Strategies to Address High Levels of Community Transmission of SARS-CoV-2 and Related Deaths, December 2020. MMWR Morb Mortal Wkly Rep. ePub: 4 December 2020.
This is a new development. The CDC had not recommended universal face masks before its December 2020 announcement.
What does the CDC’s “Universal Use of Face Masks” require?
According to the CDC, universal face masking involves wearing masks at work or elsewhere in public. The CDC wants people wearing a cloth face mask at all times to protect against COVID-19.
The CDC is recommending face masks be worn continuously when indoors or outdoors, even when social distancing is possible. This is the first time that the CDC has recommended universal face masking.
What about at home? The new CDC guidance also includes the advice that “… [w]ithin households, face masks should be used when a member of the household is infected or has had recent potential COVID-19 exposure (e.g., known close contact or potential exposure related to occupation, crowded public settings, travel, or nonhousehold members in your house). “
The CDC also suggests that “[a] community-level plan for distribution of face masks to specific populations, such as those who might experience barriers to access, should be developed.”
COVID Injuries, Face Masks, and Possible Defenses to Business Liability
Can businesses be forced to make workers wear a face mask? One Indiana county has already instituted a criminal ordinance within its jurisdiction stating that any business not in compliance with its county-wide face mask order will face a daily fine ranging between $50 and $250.00. Read, “Indiana County OKs Fining Businesses Violating Mask Order,” written by the Associated Press and published by NBCNews5-Chicago on November 18, 2020. It is possible that other Indiana counties or jurisdictions may pass similar requirements. Moreover, Illinois Governor Pritzker included criminal fines as part of his August 2020 Face Mask Mandate for the State of Illinois. See, Coronavirus: New Face Mask Mandates Help Define Businesses’ Legal Duty of Care in COVID-19 Injury Cases.
Business Liability and COVID Face Mask Requirements
However, even with CDC recommendations, state-wide face mask orders, and local ordinances, there may be businesses and employers who will fight against being held liable for damages resulting from COVID-19 to customers, clients, workers, or employees based upon nuances of these new rules and regulations.
Face Mask Defense Breach Argument: Universal Requirement Weakens Likelihood of Exposure on Job
Among them may be the argument that the “universal face mask” requirement establishes the likelihood that a worker or customer may be exposed to COVID-19 at any number of locations, not just the business premises or work site. The defense may suggest there was no breach of a duty of care because the victim may have contracted the virus in so many different places.
For Coronavirus victims and their families, meeting their burden of proof to show that the employer or business is indeed the location of their Coronavirus exposure with its resulting illness injuries may need to be more detailed and aggressive in the aftermath of a universal face mask mandate.
Face Mask Defense Causation Argument: Some Studies Suggest Face Masks Don’t Work
Another potential argument in any COVID exposure injury case may also be based upon the face mask itself. Defendants may argue that even if there was insufficient enforcement of face mask protocols on the work site or at the business premises, it does not matter because of the position of some experts that face masks do little to protect or prevent infection with COVID-19. In other words, failure to use face masks may be argued by the defense as not contributing to the cause of the victim’s injuries.
If the business is confirmed to have failed to insure face masks were being worn on the premises, these studies might be argued by the defense to suggest the masks would not have protected the victim anyway. See, e.g., “Covid-19: Face Mask Rules More Political than Scientific, Says UK Expert,” written by Nicola Davis and published in The Guardian on May 21, 2020; and “COMMENTARY: Masks-For-All For COVID-19 Not Based On Sound Data,” written by Lisa M. Brosseau, ScD, and Margaret Sietsema, PhD and published by the University of Minnesota Center for Infectious Disease Research and Policy.
Business Liability for Injury or Death from Coronavirus in Indiana or Illinois
In both Indiana and Illinois, people either at work or otherwise out in public — to shop, to visit the doctor, to pick up the kids, etc. – will be exposed to COVID-19 and suffer bodily injury as a result. Some of these Coronavirus victims (and their loved ones) may have legal claims for justice against businesses who through a failure to meet a legal duty of care and safety allowed these victims to be exposed to COVID-19.
Any business or company that fails in its duty of care and as a result of this breach causes a worker, employee, client, customer, patient, resident, or other visitor on its premises to fall ill with the Coronavirus may be responsible to that COVID victim and their loved ones under the personal injury and/or wrongful death laws of the states of Indiana and Illinois.
The victim, as claimant, will have the burden of proof to establish this business or company breached its duty of care and as a result was the proximate cause of the victim’s harm. This is true in any bodily injury claim; however, COVID victims must expect a particularly aggressive defense in any Coronavirus injury case.
While the use of face masks is designed to protect the public against exposure to the potentially deadly Coronavirus, victims must be aware of the complexities of the current situation. Those with possible legal claims will need zealous advocacy on their behalf against corporate defendants already fighting vigorously against responsibility for any victim’s COVID exposure harm.
For more on COVID litigation involving Coronavirus Injury Claims, read:
- Coronavirus Pandemic in Indiana and Illinois: Proving COVID Injuries after Exposure to Virus Other Than Job Site
- Coronavirus Lawsuits in Indiana and Illinois: Injury Claims for COVID Related Injuries
- Coronavirus: Employer Liability for Worker’s Family Injuries Caused by COVID-19 Exposure
- COVID Whistleblowers: When Employers Recklessly Fail to Protect Against Coronavirus Exposure
- Coronavirus: School District Liability for COVID-19 Exposure in Indiana
- Coronavirus: Nursing Homes in Indiana Reported to Have Almost Half of all COVID-19 Deaths.
If you or a loved one has been exposed to the Coronavirus and suffered harm as a result, then you may have legal claims for justice against a business establishment or employer who breached its duty of care to provide a safe premises. Please be careful out there!
