Image of MVMNT FIT closed due to COVID-19

By: Adam Bean

Introduction

COVID-19’s spread across the United States has placed businesses between a rock and a hard place. If a business wishes to survive, its doors must remain open to customers. Yet, remaining open increases the chances that an employee or customer becomes infected and seeks redress in the courts. Thus, what is a business to do?

This blog post will attempt to address that question. First, this post will detail the current state of COVID-19 litigation: how many complaints have been filed, what are the central claims, and who has been targeted. Next, this post will outline what a COVID-19 lawsuit might look like: who is a likely complainant and what would they need to demonstrate to a court. Finally, this post will highlight key considerations for businesses operating during this pandemic: implement and enforce reasonable safety protections, and keep an ear attuned to the state and federal government.

 

The Current State of COVID-19 Litigation

As of writing, the United States has tallied 7,146,266 COVID-19 infections.[1] Despite this astronomical number, only 5,169 COVID-19 complaints have been filed in the court systems.[2] Of these, 1,181 relate to Insurance claims, 653 relate to “Labor and Employment,”  and 317 relate to “Consumer Cases.”[3] While COVID-19 complaints have been filed in all 50 states, four states account for nearly 50% of these complaints: New York (995), California (726), Florida (403), and Texas (370).[4]

COVID-19 complaints have been filed against all types of businesses. Large corporations like Walmart, Tyson, and American Airlines,[5] as well as small businesses like Ann Arbor’s Tomokun Noodle Bar[6] and HomeTown Pharmacy,[7] have faced COVID-19 litigation. As COVID-19 continues to infect Americans, legal analysts predict that filings of COVID-19 complaints will increase at an “[e]xponential [r]ate.”[8]

 

What Might a COVID-19 Lawsuit Look Like

There are two classes of claimants that businesses are likely to face: employees and consumers.

 

Employees

Suppose ABC Candy Shoppe is open for business. Susan, ABC Candy Shoppe’s employee, comes into work and interacts with customer Sally, an asymptomatic COVID-19 carrier. Susan returns home immediately after her shift and sparks a fever the next morning. Susan becomes increasingly ill and is left unable to return to work. What redress does Susan have against ABC Candy Shoppe?

While there are no federal requirements,[9] almost every state requires employers to provide workers’ compensation should an employee suffer a “work-related injury or illness. . . .”[10] Workers’ compensation has been described as “a grand bargain between employers and workers” because “workers receive guaranteed, no fault benefits for [on-the-job] injuries, illnesses, and death[] but forfeit their rights to sue their employers.”[11]

COVID-19 has caused states to tweak this grand bargain.[12] In particular, participating states have modified the burden an employee bears for proving her infection occurred at work,[13] and which exceptions employees may claim to side-step workers’ compensation.[14] For example, Wyoming presumes workers’ compensation benefits are owed to a COVID-19 positive employee, but has made it her sole remedy.[15] On the other hand, Michigan only presumes worker’s compensation benefits are owed to first responders and health care personnel.[16] But Michigan has not made workers’ compensation an employee’s sole remedy for COVID-19: if she demonstrates that her injury or illness was the result of “a deliberate act of the employer [who] specifically intended [the resulting] injury” she may side-step workers’ compensation and sue her employer directly.[17] Side-stepping exposes employers to liability for expenses normally covered by workers’ compensation, as well as pecuniary (pain and suffering) damages.

Thus, returning to Susan, the redress available to her depends on the state in which she is employed. If ABC Candy Shoppe employs Susan in Wyoming, access to workers’ compensation benefits are presumed, and she cannot side-step to personally collect from the employer. Consequently, ABC Candy Shoppe continues on as normal.

Suppose, however, that Susan is employed in the state of Michigan. Susan is afforded no presumption of workers’ compensation benefits for her infection. If Susan establishes that her infection occurred while on-the-job, workers’ compensation may kick in. Alternatively, if Susan can demonstrate that ABC Candy Shoppe intentionally infected her with COVID-19, ABC Candy Shoppe’s workers’ compensation coverage vanishes, rendering it liable for all of Susan’s illness related expenses and pecuniary damages.

 

Consumers

Suppose DEF Sugar Shoppe is open for business. Steven, DEF Sugar Shoppe’s employee and unknowing COVID-19 carrier, comes into work. Suppose further that DEF Sugar Shoppe has no COVID-19 screening policies in place. Customer Stuart interacts with employee Steven who unknowingly infects him. Stuart immediately returns home and sparks a fever the next morning. Stuart becomes increasingly ill, is hospitalized, and racks up enormous medical bills. What redress does Stuart have against DEF Sugar Shoppe?

Consumers do not enjoy the same benefits as employees—there are no “consumers compensation” plans that businesses must carry.[18] Instead, consumers are left to rely on the court system for damages. In the case of DEF Sugar Shoppe, consumers are likely to bring either wrongful death or personal injury claims, both of which are negligent torts. Negligent torts have the four following elements, each of which must be established by the plaintiff:

(1) duty of care: did the defendant owe the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others

(2) breach of duty of care: did the defendant’s conduct, by act or omission, fall below the standard of care

(3) causation: was the defendant’s failure to meet the applicable standard of care causally connected to the plaintiff’s harm

and

(4) damages: did the plaintiff suffer harm.[19]

The standard of care mentioned in this framework is that of negligence: did the employer “fail[] to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”[20]

To prevail on a wrongful death suit, a plaintiff must show that the defendant owed the decedent a duty to treat him with the level of care “that someone of ordinary prudence would have exercised under the same circumstances,”[21] that the defendant failed to do so, “and that the [d]efendant’s negligence caused the [plaintiff’s] death. . . .”[22] The plaintiff will also have to show that the decedent’s death has resulted in monetary damages like the “loss of support, services, lost prospect of inheritance, and medical and funeral expenses.”[23]

Returning to Stuart, suppose he passes away from his COVID-19 infection. Stuart’s family would likely pursue a wrongful death suit against DEF Shoppe,[24] claiming:

(1) DEF owed Stuart a duty of care by virtue of being a place of public accommodation,

(2) DEF breached that duty of care by allowing Steven to return to work without checking him for COVID-19, which was negligent because a reasonable employer would have checked her employees,

(3) DEF’s failure to check Steven for COVID-19 caused Stuart to contract COVID-19, and COVID-19 was the cause of Stuart’s death

(4) As a result of Stuart’s death, his family has suffered x, y, and z damages.

Personal injury cases operate similarly to wrongful death cases. All four elements remain in place, but instead of claiming that the defendants negligence caused death, a plaintiff will claim the defendant’s negligence caused him injury.[25] Additionally, in personal injury cases, three damage types are taken into account:  special damages, medical special damages, and general damages.[26] Special damages are those relating to “repair[ing] or replac[ing] damaged property, lost wages, sick or vacation time used during . . . recovery, and any other out of pocket expenses . . . incurred because of the injury.” [27] Medical special damages are the sum total of an individuals’ medical expenses incurred as a result of the injury.[28] Finally, general damages are “intended to compensate . . . for non-monetary injuries . . . [like] . . . pain, anxiety, and other suffering . . . endure[d] because of [the] injury.” [29]

Returning to Stuart, after making a miraculous recovery, he will likely pursue a personal injury suit against DEF Sugar Shoppe:

(1) DEF owed Stuart a duty of care by virtue of being a place of public accommodation,

(2) DEF breached that duty of care by allowing Steven to return to work without checking him for COVID-19, which was negligent because a reasonable employer would have checked her employees,

(3) DEF’s failure to check Steven for COVID-19 caused Stuart to contract COVID-19,

(4) As a result of Stuart’s COVID-19 infection, he has suffered x, y, and z damages.

 

What Can Businesses Do

In order to avoid litigation, consider the following.

 

(1) Implement and enforce reasonable protections.[30] Businesses are likely to face negligent torts (as described above) for consumer COVID-19 infections. In these cases, the plaintiff must establish negligence. As a result, surrounding a business with protections signals to courts that it took steps which someone of ordinary prudence would have taken to ensure consumer safety, and was therefore not negligent. Examples of reasonable protections include:

(a) Following CDC guidelines https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

(b) Following State guidelines https://www.uschamber.com/article/state-by-state-business-reopening-guidance

and

(c) Following Federal guidelines https://www.whitehouse.gov/openingamerica/

Implementation of reasonable protections, however, is not enough. Recall the example of DEF Sugar Shoppe. There, Stuart sued DEF Sugar Shoppe for the actions of its employee, Steven. Stuart was able to pursue this claim under the doctrine of Respondeat Superior: an employer is liable for the acts of her employees so long as those acts occurred within the scope of the employee’s employment.[31] Even assuming now that DEF Sugar Shoppe had reasonable protections in place and that Steven forgot to abide by them, a plaintiff may establish negligence by claiming that a person of ordinary prudence would have ensured her employees  followed policy. As a result, it is important to both implement protections and strictly enforce them if your business wishes to rebut claims of negligence.[32]

 

(2) Pay attention to state and federal government: both state and federal legislators continue to debate bills that would immunize businesses from COVID-19 litigation.[33] But do not count your chickens before they hatch: until immunity bills pass into law, it is critically important that your business continues to implement and enforce reasonable protections. Regularly check both state and federal guidelines (linked above) to ensure your business remains in compliance with their suggestions.

 

End Remarks

In closing, it is important to realize that COVID-19 threatens your business with both legal and non-legal liability. Thoughts and feelings about COVID-19 have fallen along strong partisan lines,[34] and thus the way your business responds will impact its reputation.[35] When serving customers and handling employment matters, carefully consider the needs of your clientele, the market sector within which your business operates, and the geopolitical location of your business. Balancing reputational, legal, and health risks should be at the forefront of your mind when making any future business decisions.

 

 

 

 

[1]https://news.google.com/covid19/map?hl=en-US&mid=%2Fm%2F09c7w0&gl=US&ceid=US%3Aen

[2] https://www.huntonak.com/en/covid-19-tracker.html

[3] Id.

[4] https://www.huntonak.com/en/covid-19-tracker.html

[5] See, https://www.advisory.com/daily-briefing/2020/08/03/covid-lawsuits (Walmart and Tyson); https://www.foxnews.com/travel/coronavirus-american-airlines-lawsuit-pilot (American Airlines).

[6] See https://www.freep.com/story/news/local/michigan/2020/09/25/michigan-legislation-covid-19-liability-protections/5829434002/ (Tomokun Noodle bar)

[7] https://www.michiganemploymentlawadvisor.com/virus-outbreak-response/employer-sued-for-violating-michigan-coronavirus-stay-home-order/

[8] https://www.fisherphillips.com/resources-alerts-fp-covid-19-employment-litigation-tracker-reveals

[9] https://fas.org/sgp/crs/misc/R44580.pdf

[10] https://www.dir.ca.gov/dwc/WCFaqIW.html

[11] https://fas.org/sgp/crs/misc/R44580.pdf

[12] To find your state’s specific requirements, see https://www.workplacefairness.org/state-agencies or https://www.nfib.com/content/legal-compliance/legal/workers-compensation-laws-state-by-state-comparison-57181/ or https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx

[13] https://www.hg.org/legal-articles/burden-of-proof-in-a-workers-compensation-case-49608 (PA requirements) https://www.workerscomplawyerhelp.com/blog/2011/07/michigan-workers-compensation-burden-of-proof/ (MI requirements)

[14] https://www.tresslerllp.com/docs/default-source/Publication-Documents/chicago1–665982-v1-workers__compensation_exclusions.pdf?sfvrsn=0

[15] https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx: as of writing, MI has many pending workers’ compensation bills that may undermine the accuracy of this claim.

[16] Id.

[17] https://www.tresslerllp.com/docs/default-source/Publication-Documents/chicago1–665982-v1-workers__compensation_exclusions.pdf?sfvrsn=0.

[18] https://www.nfib.com/content/resources/insurance/bizhelp-small-business-insurance-dos-and-donts-74003/

[19] Richard Epstein and Catherine Sharkey, Cases and Materials on Torts, pg. 137-38 (11th ed., 2016)

[20] https://www.law.cornell.edu/wex/negligence

[21] Id.

[22] https://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html

[23] https://injury.findlaw.com/torts-and-personal-injuries/wrongful-death-overview.html

[24] Stuart’s family is able to pursue DEF for Steven’s actions because of Respondeat Superior, a concept that will be explained in the last section of this blog post.

[25] https://www.andersonhemmat.com/colorado-personal-injury-blog/the-four-elements-of-a-personal-injury-case

[26] https://saclaw.org/articles/calculating-personal-injury-damages/

[27] Id.

[28] Id.

[29] Id.

[30] Not only does this make legal sense, it is also the morally correct thing to do. Responsibility for reducing the spread of COVID-19 falls upon all of us, and we simply cannot continue to let our fellow human beings perish by the hands of this virus.

[31]  https://www.law.cornell.edu/wex/respondeat_superior

[32] While not a “reasonable protection,” your business may consider implementing consumer COVID-19 liability waivers—the enforceability (and morality) of which remains in question.

[33] https://www.freep.com/story/news/local/michigan/2020/09/25/michigan-legislation-covid-19-liability-protections/5829434002/ (MI legislature’s pending COVID-19 business protections); https://www.republicanleader.senate.gov/newsroom/research/liability-protections-are-essential-to-reopening-the-american-economy (McConnell’s COVID-19 “red-line”)

[34] https://www.pewresearch.org/fact-tank/2020/07/22/republicans-remain-far-less-likely-than-democrats-to-view-covid-19-as-a-major-threat-to-public-health/

[35] See https://www.today.com/food/people-want-boycott-costco-over-store-s-new-mandatory-mask-t181002 (Threatening to boycott Costco for requiring masks); https://abcnews.go.com/US/wireStory/tide-turns-retailers-resisted-masks-relent-71983242 (Winn-Dixie Markets reverses optional mask policy in response to pushback)