The biggest fear for employers is what to do if an employee who came back to work is later diagnosed with COVID-19.   Are employers liable for these situations? 

Think of the meat packing business and the liabilities they will incur.  Although in this situation, it may have been preventable in part had they followed CDC guidelines of masking and social distancing.   “For an employer wanting to get back to normal business, this could be the third crisis facing the nation,” said Todd Maisch, head of the Illinois Chamber of Commerce. “The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”

As reported last week, Senator McConnell, the Republican majority leader, has continually stated that no new stimulus would be enacted unless it had adequate liability protections for businesses. “We don’t need an epidemic of lawsuits in the wake of the pandemic,” the Kentucky Republican said on Fox News when interviewed.

Michigan has granted civil-liability protections to hospitals, nursing homes, physicians, or other medical personnel dealing with surges of patients infected with Coronavirus. Executive Order 2020-30 states that under the authority of Michigan's Emergency Management Act, healthcare professionals and facilities working in support of the state's COVID-19 response will not be held liable for a person's injuries or death, "regardless of how or under what circumstances or by what cause those injuries are sustained." Cases of gross negligence, however, are not covered, according to the order.  "Michigan's dedicated health care professionals continue putting their lives on the line every day during this unprecedented crisis, and we must do everything we can to empower them to do their jobs," Whitmer said in a statement.

Michigan’s Department of Labor and Economic Opportunity issued emergency rules on March 30, 2020 providing that a first responder who has contracted COVID-19 is assumed to have contracted the virus when at work and qualifies for workers’ compensation.  These rules apply to health providers, police, and fire. 

In a Q&A on the Michigan.gov website, it states:

Can my employee, who is diagnosed with COVID-19, make a workers' compensation claim?

Yes. If you employ a person or persons designated as First Response Employee and that employee is diagnosed with COVID-19 either by a physician or as a result of a test, and unless proven otherwise, that employee is considered to have a personal injury that arises out of and in the course of their employment.

If your employee is not defined as a First Response Employee, you as the employer or your employee may also file a workers’ compensation claim using the normal statutory claim filing process. If you are not considered a First Response Employee, you can still make a claim for an injury or occupational disease if diagnosed with COVID-19.

And in an FAQ document on COVID-19 and Workers’ Compensation, the Michigan Disability Workers Compensation Department states:

If I am not considered a First Response Employee, can I still make a claim for an injury or occupational disease if diagnosed with COVID-19 infection?

Yes. If you can identify specific exposure to COVID-19, such as a date, location, etc. and have been diagnosed by a physician or test, you may be able to show you have suffered a personal injury and therefore may be entitled to workers’ compensation benefits. Remember, Michigan is a wage loss system so in order to be eligible for any benefits a worker must show that the exposure arose out of and in the course of employment like any other work injury and that it has caused a loss of wage earning capacity in work suitable to your qualifications and training (emphasis supplied).

Could I still make a claim if I can’t point to a specific source of exposure but work around people who have been diagnosed? 

Yes. According to the workers’ compensation statute, “Personal injury includes a disease or disability that is due to causes and conditions that are characteristic of and peculiar to the business of the employer and that arises out of and in the course of the employment.” Another way to describe these might be injuries or diseases that arise over time. Remember, the key with any injury is that it must be attributable to work. For example, the statute goes on to state that, “An ordinary disease of life to which the public is generally exposed outside of the employment is not compensable (emphasis supplied).”  

In these situations, employers should be monitoring employees, when checking in on a daily basis as well as using CDC and OSHA guidance from masks to wipe downs to social spacing.  Failure to do so will likely be used as evidence that the employer failed to take all measures to protect employees.  “If employers can show they took reasonable efforts based on the information available, they will be in a very good spot to defend themselves,” said Antonio Calderone, an attorney with Laner Muchin who represents management in labor and employment cases. Yet, employers need to ensure that safety measures will not interfere with other safety concerns, like wearing masks that could interfere with machinery or catch fire.

On the other hand, by steering these cases into workers’ compensation, it could prevent lawsuits that assert employer negligence, which would be very costly to employers.  As such, it will be very important for employers to work with legal counsel to review mitigation measures as well as to review business insurance to ensure coverage if lawsuits become the norm, not the exception.

Additional ASE Resources
Coronavirus Resources - ASE members are encouraged to reference ASE’s Coronavirus and FAQ web pages for a myriad of resources and links that are regularly updated.

Virtual Course: COVID-19 Response Team Workshop: Leading Your Back-to-Work Efforts - This 2.5 hour live virtual course presents a process that your organization’s response team can model or benchmark in order to reopen or ramp up operations to the new normal.  Through presentation, discussion, and practice application, this program provides a defined ‘people first’ process to bring personnel back to work safely (physically and psychologically) and efficiently resume core operations of your organization.  The process is flexible in that it can be applied to any industry and covers considerations for small to large organizations.  Register here.

Back-to-Work Checklist – ASE and the Luminious Group have created a Back-to-Work Checklist, a guide for returning to work in the era of COVID-19.

COVID-19 Business Impact Survey – Return to Work Preparations – To view the full results of the ASE survey, click here.

Source:  Wall Street Journal 5/4/20, Chicago Tribune 5/4/20, Law360 4/17/20