What happens if one of your employees, or a non-employee who visits your business, contracts COVID-19 and claims that your business caused them to become ill? Typically, the Ohio Workers’ Compensation program should be the exclusive remedy for your employees. However, there are exceptions to workers’ compensation’s exclusivity that may provide an opening to COVID-19 negligence claims against a business. Additionally, businesses should be aware of visitors to their workplaces as COVID-19 exposure claims may arise from an invitee’s contact as well.
Potential exposure claims outside of Workers’ Comp.
Generally, an employee’s exclusive remedy for negligence claims lies within the workers’ compensation program. The Workers’ Compensation Act contains certain limited exceptions, including one for injuries resulting from an employer’s intentional tort upon an employee. Thus in order for an employee to bring a claim against an employer outside of the workers’ compensation system, the employee must prove that the injury was the result of an intentional act on the part of the employer.
Despite the high bar in Ohio for a Plaintiff to bring a claim against an employer outside the worker’s compensation system, employers may see intentional tort claims where a plaintiff alleges that because of an inadequate safety plan, or the lack of a safety plan entirely, the employer effectively intended to expose its workers to COVID-19.
In addition to its employers, businesses could face claims of exposure to COVID-19 from customers, vendors, or other people who physically encounter your business. Under Ohio law, a shopkeeper owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger.3 The key word is reasonable, as the trier of fact (often a jury), will be tasked with deciding whether or not a business took reasonable steps to ensure safety in light of the existing pandemic. Some states have granted immunity to essential businesses from civil liability. As of July 28, 2020, Ohio has not.
Under the above theories of liability regarding claims for exposure to COVID-19, and in addition to the burdens uniquely associated with those claims, a plaintiff should additionally need to show that the business was the source of the plaintiff’s exposure. Arguably, the standard set by the Supreme Court of Ohio in Terry v. Caputo should apply to COVID-19 exposure cases. In the Terry case, the Court held that to a law suit for an injury caused by exposure to a toxic substance (here, a virus), a claimant must establish (1) that the toxin is capable of causing the medical condition or ailment (general causation, which is likely not going to be an issue), and (2) that the toxic substance in fact caused the claimant’s medical condition (specific causation).5 What we call specific causation in the mass tort world might be more commonly understood in the COVID-19 context as contact tracing. Regardless of the name, a plaintiff should have to show that their development of the virus happened at the business in question as opposed to home exposure or exposure at a restaurant or the grocery store.
Developing A Defense Today
Based on the standards explored above, a business can look down the road, one or two years from now, to when a potential flood of COVID-19 claims are filed, and start to plan their defenses today. For instance, because an employee must show intent on the part of the employer to bring a claim outside the realm of the workers’ comp. system, the employer should document practices that show that it has no intention of exposing any of its workers to the virus. Similarly, if a customer or business invitee must show that a business failed to use ordinary care in maintaining its premises in a reasonably safe condition, a business should immediately take steps to show that it is reasonably maintaining its premises.
Is following the CDC and OSHA enough?
A word of caution in suggesting a business follow what the CDC and OSHA recommend: in this author’s experience, if you are looking for the minimum requirements, you are setting yourself up to fail. As a litigator who has defended many asbestos lawsuits, I can say from experience that jurors want to see that businesses and employers genuinely took care of their employees and invitees. For example, in the 1970’s OSHA set permissible exposure levels to asbestos which were higher than the current standard. Defendants have attempted to argue that they followed OSHA in the 1970s allowing only exposures up to the level set by OSHA. In speaking with jurors, they seem to be unmoved by the argument that businesses were allowed to expose people to asbestos up to a certain amount. Despite the authorization by OSHA, jurors in some instances expect businesses to have completely eliminated the use of asbestos the second it became known that it might be hazardous.
The lesson here from decades of asbestos litigation is that following the CDC or OSHA guidance alone might not provide a complete defense to COVID-19 exposure claims several years from now. In addition to following the published guidance, businesses should take some time to evaluate their workspaces and look for the features that may be unique to their business that could cause the spread of the virus. For example, a business may consider finding ways to alter activities that typically involve contact. If you have a small kitchen, perhaps mandate that only one person enter the kitchen at a time. You know your business best, so you should work to make your safety plan as unique as possible.
If you can tell a jury two years from now that you did a specific evaluation of your workspace and took efforts to tailor a safety plan, you might earn their respect and help them to conclude that you had no intent to injure your employees or visitors, but rather acted reasonably in providing a safe workspace. The attorneys at Gallagher Sharp are happy to advise and assist you in developing a reasonable plan to reduce the spread of COVID in your workplace. Please contact us with any questions.