Q: Are employers immune from liability for issues related to COVID-19?
A: As the pandemic continues and COVID-19 vaccines slowly but surely begin to reach more widespread distribution across the country, many employers continue to worry about potential liability in their workplaces for claims involving COVID-19 infections, along with a host of other claims related to employment.
New COVID-19 Liability Shield Laws
One recent trend that has emerged that should encourage employers and businesses worried about facing claims related to COVID-19 infection in the workplace: the steadily increasing number of states enacting, extending, or considering legislation providing some form of immunity from liability for businesses and employers against lawsuits raising claims related to COVID-19.
In fact, more than a dozen state legislatures have introduced COVID-19 immunity legislation since the start of 2021. In the last few weeks alone, bills in Alabama, Indiana, Montana and Wisconsin have become law. Other states, such as Georgia and New Jersey, have recently extended or are considering laws expanding existing immunity laws originally enacted in 2020. These states join a list of at least 17 states, the District of Columbia and Puerto Rico that have enacted legislation providing liability protections specifically responding to COVID-19, according to the National Conference of State Legislatures.
State COVID-19 immunity laws take a variety of forms. Some cover only essential businesses or healthcare employers (for instance, the new law in Indiana and an executive order in effect in Hawaii) while others cover all employers, for instance, the recently-enacted laws in Alabama, Montana and Wisconsin, and existing laws in Iowa and Louisiana. Typically, the laws do not provide protection for intentional, willful, or reckless misconduct. Though many laws do not clarify precisely what might constitute such misconduct in the COVID-19 context, some (such as Oklahoma’s law, and pending legislation in Florida) specifically require compliance with CDC, state, and local department of public health guidance to take advantage of immunity protections. Some of the laws also contain certain requirements, such as the Georgia law’s prerequisite that businesses post a sign with statutorily mandated language in order to take advantage of the safe harbor.
While these laws should provide a measure of comfort to employers as they wait for widespread vaccination efforts to achieve herd immunity, it is important to note that immunity from liability does not guarantee immunity from litigation. That is, employees may still attempt lawsuits, which can be costly to defend. Therefore, employers should continue to follow recognized COVID-19 safety practices in the workplace.
Other Employment Claims
Even as states continue to pass laws providing increased protection for employers against claims related to COVID-19 infection, it is important to note that employees are increasingly filing other types of claims related to COVID-19 and the workplace. Indeed, while court filings raising general employment claims slowed in the early months of the pandemic, such claims (including COVID-19 related employment filings) picked up speed in the latter half of 2020, significantly increasing in November and December. In fact, legal analytics firm Lex Machina recently reported that there was both a “significant increase in the number of total employment cases filed in federal district courts in November and December of 2020 compared to the same months in 2019 and 2018,” and “a significant increase in the number of COVID Employment Cases filed in federal district courts in November and December of 2020 compared to the preceding months in 2020.” According to the report, the most common claims asserted were retaliation, discrimination, and Family and Medical Leave Act claims.
Common fact patterns included employees contending they were terminated after contracting COVID-19 or claiming their employers did not maintain a safe workplace or comply with COVID-19 protocols during the pandemic. Additionally, lawsuits have asserted that employers failed to accommodate a disability or discriminated on the basis of an employee’s disability, or that their employer improperly denied COVID-19 related leave, including leave under the Families First Coronavirus Response Act. The trend of filing such claims is likely to continue as courts begin to reopen (or continue or improve remote functioning).
Moving forward, as state governments continue to act in response to the pandemic, employers should make sure they are aware of all available protections in the state(s) in which they operate – and ensure compliance with any requirements under those laws to obtain immunity. At the same time, employers should not lose sight of their existing employment law obligations. The Labor and Employment team at Troutman Pepper can assist you in ensuring your policies and practices with respect to COVID-19 and otherwise are compliant with the most up-to-date guidance.