By Aleksandra Syniec, Staff Writer
COVID-19 quarantine and safety requirements have kept many employees at home over the past year, but essential workers as well as those who have been ordered to return to work face increased risk of COVID-19 exposure, especially with most likely not having been vaccinated. There are steps employers can and should take to decrease these risks including: providing appropriate Personal Protective Equipment (PPE); implementing social-distancing measures for meetings and then-common spaces; requiring COVID-19 testing and disclosure; and regularly cleaning and sanitizing common surfaces and workplace equipment.
The COVID-19 Pandemic has redefined expectations of a safe work environment. Businesses already had significant mandated responsibilities for health and safety at work—but does a safe workplace now include being Coronavirus-proof? And if so, what happens when work is the reason someone gets the virus?
Employees who claim to have caught the novel virus at work are bringing claims that safety precautions were not taken by their employers, which either caused or increased the risk of catching the virus.
This novel question of whether an employee can sue their employer for contracting COVID-19 is now before many courts. But in order to be successful in their claims, they will have to prove “causation” under the standard of proof set by workers’ compensation laws, negligence claims, or in some dire cases, wrongful death suit requirements.
Workers’ Compensation Laws
Most work injuries are covered through what is known as workers’ compensation insurance, which is a type of insurance a business must purchase to provide benefits to employees who suffer work-related injuries or illnesses. This type of coverages helps pay for specific medical care and wages from lost work time due to the injury or illness and for permanent injuries. By purchasing workers’ compensation coverage, employers are shielding their business from lawsuits—meaning if an employer has workers’ compensation insurance, an employee can only claim benefits through workers’ compensation.
As part of the new COVID-19 laws in New Jersey, Governor Murphy has made it easier for any employee who catch the coronavirus to qualify for workers’ compensation. The new law creates a rebuttable presumption for an essential employee working during the pandemic—meaning that the burden falls on the employer to prove that the employee did not contract the virus at work. So Courts will take as a given that the essential worker caught the virus at work.
Law Against Discrimination and Whistleblowers Law
In the case of an employer terminating an employee because they have COVID-19 or ordering an employee to come back to work against their wishes, an employee would bring a claim under the NJ Law Against Discrimination. Employees have also started to bring whistleblower cases under the Conscientious Employee Protection Act (CEPA). Under a CEPA claim, an employee can allege that a worker was punished for complaining about inadequate safety precautions.
Wrongful Death Cases
In New Jersey, the first COVID-19 wrongful death case was filed was on October 21, in Essex County. The family of a commuter train conductor sued New Jersey Transit for negligence and wrongful death. The lawsuit accuses NJ Transit of failing to comply with state and federal guidelines on “social distancing, the use of gloves, masks and other preventative measures” during the pandemic. NJ Transit supervisors did not monitor the work site, failed to perform a task analysis to determine best practices for the job and allowed a dangerous condition to exist, according to the papers filed.
In another death case, brought by the spouse of a state railroad worker, the claim is that the employee was exposed to COVID-19 at a rail yard in Jersey City “when he embraced a co-worker who later tested positive” for the virus. He died just over a month later. The spouse claims that the employer had “instructed its workers…not to wear masks at work unless they were performing their specific job duties” [emphasis in original]. She alleges a series of failures by the defendant to provide a safe work environment, including inadequate training and a lack of personal protective equipment.
These cases, filed in the civil courts, not worker’s compensation courts, are based on claims that the employers committed “intentional wrongs” that put their workers at risk. That means that the bad conduct was beyond negligent – not providing PPE, not instilling social distancing-guidelines, etc. One major difficulty with the COVID-19 virus is that it is an airborne and highly contagious virus. If a worker went into work, then stopped at the grocery office on their way home, and then also lives with a spouse who works outside of the home as well, it can be very difficult to pinpoint exactly where the worker contracted the virus.
However, employees may bolster their negligence claim or wrongful death claim (below) by showing that their employer could have contributed to the contraction of COVID-19 of workers. Some of these negligent employer inactions include: failure to provide PPE (which includes makes, gloves, and shields); failure to implement social distancing guidelines; failure to provide hand sanitizing and/or enforce hand washing; improper cleaning or disinfection procedures of the workplace; requiring sick employees to come to work; failure to screen employees for positive cases; and not warning employees of another employee having contracted the virus.
Questions of legal liability in COVID-19 cases are still largely hypothetical since New Jersey courts have yet to rule on any major disputes. It is a brand-new area of law, with lawyers and courts literally “making it up as they go along.”
Aleksandra Syniec is a third-year law student at Seton Hall University School of Law and beyond her skill writing about different legal issues, is also knowledgeable in landlord-tenant law and information technology. This is her last blog. We thank her for her great work and wish her well.