The COVID-19 pandemic has killed 100,000 Americans so far, left millions jobless, and caused one of the greatest economic crises in history. As we write this, in late May 2020, the first bits of good news are beginning to percolate into the public sphere. In New York, efforts to flatten the curve appear to be working, and cases that were once increasing exponentially are now on the decline. By all indications, social distancing efforts have been more effective than anticipated, and, despite the grievous loss of life, there is reason to hope that the direst predictions will not come to pass.
Despite the good news, a great deal of uncertainty remains. That uncertainty extends to all aspects of our lives, from health to economics to education to national security. Meanwhile, food companies, from restaurants to grocers to manufacturers, are experiencing extreme duress due to disruptions caused by mandatory closures, travel bans, and quarantines. Even as some businesses are experiencing unusually high demand, others are pausing operations due to the emergence of illness.
Unfortunately, it is all but certain that we will continue to face extraordinary challenges in the weeks and months to come. This article will discuss two of the many legal issues, challenges, and changes that have been brought to the forefront by the COVID-19 pandemic.
Employer Liability Lawsuits
Food companies have been confronted with the difficult question of how to safeguard employees from COVID-19 while remaining fiscally viable. This is an extremely complex issue without easy answers. Food companies must balance the safety and well-being of employees with the economic realities and the needs of the nation. Unlike in some other business sectors, working remotely is simply not feasible for most food industry positions. Moreover, the industry at large simply does not have the liberty of instituting a wholesale shutdown.
One of the most perplexing issues facing the food industry is that of employer liability for COVID-19 illnesses. More specifically, the question is to what extent can companies be held liable if their employees become infected in the course of their employment. Many legal analysts are predicting an onslaught of lawsuits in the months to come. These lawsuits would ostensibly take many forms. One common type of lawsuit would be for injunctive relief, meaning, for instance, that employees could sue to demand the employer implement certain protective measures. Another type of suit would be for claims that an employee was sickened at work because of their employer’s negligence. Finally, employers may face class action lawsuits brought on behalf of a group of employees alleging an unsafe work environment.
To be sure, there are many legal and factual hurdles to overcome for such cases. For one, workers’ compensation statutes pose a significant hurdle for claimants seeking to bring tort claims against employers. In most states, injuries suffered at work do not give rise to tort liability. The question with COVID-19 is whether it constitutes a work injury. Some states have already enacted legislation to address this, but most have not. In Wisconsin, for example, the state has enacted a temporary law providing that when a first responder is injured by COVID-19 and had at-work exposures to infected individuals, the injury is presumed to be employment related.
Although worker’s compensation benefits are typically the exclusive remedy available to injured workers, there are certain exceptions that COVID-19 could conceivably fall into. For instance, many jurisdictions allow an exception for an employer’s intentional conduct toward employees. If a plaintiff’s attorney can establish that the aggrieved conduct was willful or deliberate, i.e., by arguing that the employer willfully chose not to implement OSHA’s COVID-19 guidance, a judge could rule in favor of the plaintiff.