In reality? Probably not the kind you’re hoping for.
A growing number of states (30+) have enacted some form of legal protections for employers from Covid-related liability claims either through legislation or executive orders, in response to employer’s legitimate fears of exposure arising from transmission of Covid-19 on their sites. However, most Covid “shield” laws only protect employers from lawsuits that arise from ordinary negligence, rather than provide absolute, or strict, immunity for any claims related to Covid-19 transmission. As such, claims against an employer that are based on the employer’s intentional, willful, or fraudulent conduct that results in gross negligence, are not covered. (See California’s pending legislation, AB 1313 regarding civil liability for businesses and AB 1152 and AB 1759 regarding higher educational institutions). Moreover, some states have language that make defending against negligence claims a bit more difficult for the employer. For instance, in Michigan, businesses must first demonstrate “substantial compliance” with state or federal health guidance at the time of exposure. Likewise, in North Carolina, employers must “reasonably notify” the public of specific mitigation measures they are taking to reduce the risk of transmission of Covid.
On the flip side, some states have made it more difficult for plaintiffs to bring valid claims by requiring higher standards of proof and/or stricter pleading requirements (i.e., Florida requires plaintiffs attach a doctor’s affidavit to their complaint affirming “with a reasonable degree of certainty that the alleged injuries or damages were the result of the defendant’s acts or omissions.”) Additionally, other states have done away with the types of monetary damages that can be sought (i.e., Alabama limits damages to “purely economic damages” if the plaintiff cannot show s/he sustained a “serious injury,” which is defined as a minimum 48-hour hospitalization or death).
All told, the majority of the “Covid Liability Shield” laws only protect employers from tort-based personal injury claims (and that’s assuming that the employers are not already protected by a worker’s comp exclusivity provision in their respective state).
To be clear, these Covid Liability Shield laws do not, and are not intended to, provide employer immunity from employment-related claims that involve Covid such as failure to provide reasonable accommodations (i.e., remote work), or failure to allow employees paid time off under the FFCRA (Families First Coronavirus Response Act) and/or ARPA (American Rescue Plan Act) to obtain a Covid test or vaccine, recover from vaccines and side effects, or care for a relative with Covid symptoms. These Shield laws also do not provide immunity from any Covid-related whistleblower claims, i.e., when an employee brings a claim against the employer for wrongful termination after complaining about Covid safety protocols in the workplace.
So, what should employers do in the face of growing concern of Covid-related claims?
- Implement a Covid-19 Plan or Policy. If you don’t already have one, you’ll need a Covid Mitigation Plan that addresses specific steps the company is taking (or has taken) to reduce transmission of the virus (i.e., increased cleaning and sanitation of the workplace, offering PPE to workers and customers, posting signage about social distancing and hand washing). You’ll also need a Covid Policy in your handbook that addresses issues of paid leave and how employees should request it for Covid-related issues, reasonable accommodations like remote work and how to request one, and if applicable, implementation of staggered shifts or modified hours to reduce the number of employees and customers in close contact.
- Designate a Covid-19 Compliance Coordinator. This can be someone on your HR team that is tasked with staying on top of the dynamic guidance issued from both federal agencies (OSHA, CDC, DOL) and state and local agencies. Indeed, OSHA recommends employers designate a Covid-10 Coordinator as part of a Covid-19 Mitigation Plan.
- Consult legal counsel immediately upon receipt of a potential Covid claim. Perhaps it goes without saying: If you receive notice of an administrative agency charge letter or a pending lawsuit, contact legal counsel immediately. Whether the claim is legitimate, and the intensity of your company’s exposure depends on many variables, and an experienced attorney can help you understand what you’re facing and how to best deal with the claims.