The COVID-19 pandemic has raised many new questions in employment law. One emerging question is the liability of a business when a worker who was infected while on the job, passes the COVID-19 infection to his or her family member(s). This issue has yet to be addressed by most courts, however a recent Kane County, Illinois case indicates there is likely to be substantial future litigation on this issue.
In Estate of Esperanza Ugalde v. Aurora Packing Company, Inc. the court addressed whether a business may be held liable where COVID-19 passed from the workplace to the home of its employees. Ugalde alleges the meatpacking plant where the employee worked knew that COVID-19 infected employees had been in the workplace and the plant was negligent in not mitigating exposure to other employees. The suit further alleges the employee contracted COVID-19 at work and then spread it to his wife, resulting in her wrongful death. It is yet to be seen whether cases will be brought addressing other related claims, such as personal injury and negligence where an employee contracts COVID-19 at the workplace and then spreads it at home.
Plaintiff-employees who seek to hold businesses accountable for COVID-19 spreading to their family members may have an uphill battle. They will have to prove that the business failed to implement safety measures, which is a difficult threshold. However, successful plaintiffs will not be subject to worker’s compensation-based limits on liability. It has yet to be seen how courts will address these claims, but future litigation is almost certain. Therefore, these possible cases represent a clear risk – and opportunity – for employers.
As a side note, employers are not required by law to inform employees if someone in the workplace tests positive for COVID-19, and employers should never reveal the name of the employee who has tested positive for the virus, however, the Center for Disease Control (“CDC”) has recommended employers take specific steps to protect their employees. Employers should conduct regular health checks of employees, require employees to wear cloth face coverings, and implement social distancing measures. Employers should also regularly clean dirty surfaces and provide cleaning materials to employees. If an employee tests positive within seven days of being in the workplace, it is recommended the employer close off any areas used for prolonged periods of time by the COVID-19 positive employee until the space can be cleaned. Employees who have been or may have been exposed to the virus should be notified to self-quarantine and monitor for symptoms; employers should make accommodations for self-quarantine after exposure.
It is prudent that employers review their COVID-19 procedures to ensure they are following CDC guidelines while maintaining employee privacy. Further, employers should ensure employees who have been exposed to COVID-19 can self-quarantine and that employees do not come to work if they are exhibiting virus related symptoms. These measures not only protect employees, but may also protect employers from possible litigation.
For more information on workplace related business best practices during the COVID-19 pandemic, please contact the attorneys at Rock Fusco & Connelly, LLC.