Managing the Risk of COVID-19 Workplace Lawsuits

By Brian Parks,

Imagine a five-year liability shield that would prevent workers from suing their employers over coronavirus-related issues. That’s exactly what we’d see if Republicans prevail in a debate in Congress over which provisions should be included in the next COVID-19 stimulus package. Democrats, however, are fiercely opposed to the idea and even the White House has signaled leaving it out isn’t a deal-killer.

It didn’t help that the executive directors of the NFL, NBA, NHL, MLB, and MLS players’  associations sent a letter to Congressional leaders raising their concerns about the liability shield.

In short, the thing’s a long shot.

In the meantime, a number of employers already have been sued by workers claiming they contracted the novel coronavirus as a result of their employer's negligence. These suits generally allege the employers failed to follow state and federal guidance for combatting the virus’ spread, such as the use of face masks and physical distancing.

So rather than waiting for lawmakers to resolve things, here’s a better idea: do more to manage the risk.

For starters, make sure you’re following and have implemented workplace safety protocols as recommended by federal agencies such as OSHA and the CDC.

Then make sure you’re following state, county, and local coronavirus safety protocols where your workplace is located.

Your return-to-office plan needs to be clearly and consistently communicated to employees and should be based on health guidelines in place at the time.

As part of that plan, make sure you’ve solicited feedback from your workforce. A company survey or even a suggestion box are good ways for employees to bring issues to the attention of the company.

Keep in mind, too, that the Equal Employment Opportunity Commission (EEOC) has made it clear that employers cannot make assumptions about their employees’ ages, ability to telework, known or perceived disabilities, or suspected vulnerabilities when making decisions about which of your employees you’ve asked to return to work.

In other words, trying to be “nice” to certain employees by letting them continue to work from home can get you into hot water.

At the same time, do keep in mind employees with a disability that might make them vulnerable to COVID-19. Disability, in this case, includes someone with, say, diabetes or a heart condition that places them in a higher risk group of contracting the coronavirus.

Another area of concern? Potential harassment claims. We’ve all heard reports that persons of Asian descent have been the target of harassment over the alleged origin of COVID-19.  Employers can be found liable if they’re found to have known about or even should have known about the unlawful harassment of their employees.

Yet another area to think closely about is your company’s Employee Practices Liability  Insurance. Talk to your insurance broker about your policy and whether coronavirus-related workplace safety lawsuits are covered. If not, perhaps an addendum is in order.

There’s more to this, as you might imagine, but the point is to be prepared. The liability shield, should it pass, would no doubt discourage the filing of coronavirus-related workplace complaints by workers. But that doesn’t mean you can be careless about addressing the risks of coronavirus in your workplace.

Brian Parks is the President of the Commercial Lines department at CCIG. Reach him at  [email protected] or at 720-330-7923.

CCIG is a Denver-area insurance, employee benefits, and surety brokerage with clients nationwide. We do more than make sure you have the right policy. We help you manage your long-term cost of insurance with our risk and claims management expertise and a  commitment to service excellence.