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As the country begins the process of opening back up after weeks of mandatory business closures and stay at home orders, legal issues relating to Covid-19 are beginning to surface. Employees, customers, and business owners face a legal landscape unlike anything that has come before it. Employees who are called back to work may worry about being exposed to the virus in the workplace while customers share the same concerns about frequenting recently re-opened businesses. At the same time, business owners may fear lawsuits brought by those employees and/or customers. All of which leads to the question – can a business be sued over Covid-19?
Most employees are covered under an employer’s workers’ compensation coverage which is intended to provide compensation and medical benefits to workers who are injured or become ill while at work. While an employee is not required to prove fault on the part of an employer to be eligible for workers’ compensation benefits, the worker must prove that the injury/illness occurred while on the job. For a worker hoping to get a workers’ compensation claim approved based on testing positive for Covid-19, the challenge will be providing that proof.
Nevertheless, in a recent interview, Tampa business attorney Jeffrey Lieser suggested that a business “read every piece of guidance out there that is applicable and implement it and be hawkish about making sure it is followed. Otherwise, you’re opening yourself up to liability.”
The Occupational Safety and Health Administration (OSHA) has issued similar advice. OSHA requires employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. Given the current Covid-19 pandemic concerns, OSHA has advised businesses to follow the Centers for Disease Control and Prevention guidelines, including instructing employees to keep six feet away from co-workers or customers, taking temperatures, disinfecting surfaces, and providing face masks, hand sanitizers, and barriers when appropriate.
Customers who are injured or become ill after visiting a business can typically pursue a claim for damages through the filing of a personal injury lawsuit. Unlike a workers’ compensation claim, however, a personal injury lawsuit requires the plaintiff to prove negligence on the part of the defendant. In this case, that would require the plaintiff to prove several important things, including:
Just like the worker in a workers’ compensation claim, a plaintiff in a personal injury lawsuit will face an uphill battle proving that the virus was contracted at the business. A customer assumes a certain amount of risk simply by venturing out under the circumstances; however, a business should also take steps to mitigate any potential risk. As attorney Lieser said recently, “The public is assuming liability by just living and breathing and going out in the world, but that doesn’t mean that the places they’re invited to whether it’s a pool, or a place of business can recklessly ignore the guidance from the officials as to what you need to do to operate a safe space.”