The Covid-19 pandemic has hit everyone with new and unexpected problems. Governmental officials are daily making what may be life or death decisions based on changing advice, research, opinion and rumor.
Charlotte County commissioners at this month’s meeting advised decisions which can slow the community spread of the virus (masks indoors as recommended by the surgeon general and Center for Disease Control) should be left to each individual county business.
So, who can we blame? Where can we assign responsibility? Who will pay for our reduction or loss of income, the discomfort, the inconvenience, the illness, and perhaps death? In Charlotte County that burden of responsibility will rest on each individual business, because, unlike government entities that operate (in Florida) under the legal protection of “Rex Nihil potestis facere iniuriam” or sovereign immunity, no such protection is afforded businesses.
To protect against lawsuits, companies have been advised to implement safety measures recommended by CDC, OSHA (Occupational Safety and Health Administration), and state and local authorities. Because these ‘safety measure’ recommendations vary widely among federal, state and local governments, plaintiff attorneys are lining up to question any business decisions regarding Covid-19.
Lacking clear guidelines, such lawsuits may entangle businesses for many years after a vaccine is discovered and may act to substantially impede economic recovery. “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 (litigation) crisis.”
Liability for contracting Covid-19 at a specific business or location at a specific time would fall under the premises operations section of a commercial general liability policy. Most policies, however, have exclusions for injury or death caused by a viral illness. These exclusions will be aggressively challenged in court, and the wording defended by insurers. Since these exclusions predate the Covid-19 pandemic, prior court decisions have upheld policy wording. If the exclusion is upheld a business may face a large uninsured liability claim.
Liability of employers may also extend to Covid infected employees, which is an exposure generally covered by workers compensation and occupational disease insurance. “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 employment practices attorney Antonio Calderone with law firm Laner Muchin.
However, “a fundamental problem is that it remains unclear what constitutes a safe workplace in the COVID-19 context, and existing employment laws were not designed to let employers do what they need under the extraordinary circumstances,” said Northwestern University’s Pritzker School of Law professor Dan Rodriguez. If the conditions required for a ‘safe workplace’ are not defined by either federal or state governments, it will be defined by future resource draining litigation.
Last week Virginia became the first state to issue COVID-19 workplace safety guidelines, Florida should follow this example.