Brace for Liability Lawsuits

Plaintiff’s attorneys are courting employees who contract COVID-19 on the job or bring it home.

Brace for Liability Lawsuits

February 2021   minute read

By: Stephenie Overman

The next wave of COVID-19 cases that convenience stores face may be lawsuits brought by employees who contend that they were infected by the virus in the workplace.

Personal injury lawyers “are spending large sums of money advertising their services for COVID-19 lawsuits, a reliable barometer on tort litigation trends,” according to Neil L. Bradley, executive vice president and chief policy officer for the U.S. Chamber of Commerce.

“Just one prominent plaintiff’s firm alone has spent over $7 million on COVID-19 lawsuit ads. Since April, COVID-19 has been the second most highly advertised lawsuit topic overall, and we expect these numbers to increase,” Bradley said in a September 10, 2020, letter sent to the U.S. Senate.

An employee who is injured on the job usually can only file federal or state workers’ compensation claims and cannot file a regular lawsuit, except in narrow cases. The workers’ compensation system caps businesses’ liability and bars expensive lawsuits. For employees, the advantage to this system is that they do not need to prove fault.

“Generally, employees don’t have the right to sue their employer for negligence,” noted Thomas P. Gies, a founding member of Crowell & Moring's Labor & Employment Group in Washington, D.C. But “many plaintiff’s attorneys are trying to plead around workers’ comp. They make a claim that an employer’s conduct was so outrageous that it was gross negligence or intentional tort.”

Seeking Targeted Protection

NACS, the Chamber of Commerce and other business groups have given support to a Senate bill that would provide targeted liability protections to businesses that have made efforts to protect individuals from the spread of the novel coronavirus. According to supporters, the legislation—“The SAFE TO WORK Act” (S. 4317)—would not protect bad actors, but only those who have made good faith efforts to comply with federal, state and local guidance. In the House, NACS has endorsed the Get America Back to Work Act (H.R. 7528).

More than a dozen states have enacted some type of liability shield to protect small business owners from being hit with lawsuits by employees who say they contracted the virus while at work. As of early December, those states included Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming.

The possibility of lawsuits “raises clear concerns,” said Douglas Kantor, who is counsel to NACS. He advised convenience store managers to first look closely at guidelines from the Centers for Disease Control (CDC) and the Occupational Health and Safety Administration (OHSA) and at state and local ordinances.

Create policies about sanitation, the use of face masks and rules for physical distancing that protect employees and customers from COVID-19. Then “document that employees have been made aware of the policy. Record when customers would not follow the policy. Recognize that there are some things you can’t do, but the more documentation you have shows that you’re taking it seriously,” said Kantor, who is a partner in the Washington, D.C., office of Steptoe & Johnson.

If an employee does contract the virus, “do contact tracing to see who that person may have been exposed to,” Kantor recommended. Depending on what you find, you may need to shut down for a period of time to have the workplace cleaned. There are contractors who specialize in that.”

Make sure an infected employee is fully recovered before being allowed to return to work. “The typical timeframe recommended is two weeks. If they can be tested and have a negative test, that’s good,” he said, noting that companies have different policies regarding compensation during that time. “There are lots of factors—a part-time hourly worker is different than a full-time salary worker.”

Contact other employees to make sure they are monitoring themselves. “There are still some limitations, but ideally, get anybody who was exposed tested,” Kantor said. “Hopefully that ends it, but if a second person or others get it you may go through it again. You need to cut off the chain of infection as early as you possibly can.”

Don Rhoads, president and owner of The Convenience Group in Vancouver, Washington, has become something of an expert on the protocols needed to keep employees and customers safe because “Washington has been a kind of a benchmark for the rest of the country. This is where we started. We had the first confirmed case in January [2020].”

The company looked to the CDC and Food and Drug Administration (FDA) for guidance. In addition, Washington is “very strict” about mask requirements in indoor public spaces, he said. “Early on, the governor started to lock down our state. There is a $10,000 fine if team members are not following mask protocol, unless they have a health condition. There’s one warning.

“We take this seriously and worry about third-party liability,” Rhoads continued. “I’ll bet the convenience-store industry has spent millions of dollars to provide safe workplaces, hundreds of thousands of dollars on PPE, premium pay so people will stay working,” he said. “It’s common throughout the industry.”

The minute an employee enters one of the group’s approximately 125 stores, “we have a temperature log. An employee cannot start the workday without that information in place. The workplace is very clean—we use best practices,” he said.

Generally, employees don’t have the right to sue their employer for negligence, but many plaintiff's attorneys are trying to plead around workers’ comp.

When an employee tested positive, that person was required to isolate at home for two weeks, and “we went back and performed tracing. In 24 hours we had notified the community. That person just came back. We paid them. We did not put them on sick leave.”

Rhoads is proud that as providers of food and fuel, convenience stores have been recognized as part of the country’s critical infrastructure. “We believe as an industry that we are essential. We’ve worked hard to follow the evolution of best practices, and I believe we’re doing the best we can,” he said. “We deserve liability protection.”

New NACS Chairman Kevin Smartt testified last year in favor of targeted liability protection. Smartt is the CEO and president of Kwik Chek Food Stores in Texas, which also has had the experience of an employee testing positive for the virus. “While we are proud of how we addressed the situation, it was neither easy nor inexpensive given the costs of the medical grade cleaning and the need to pull employees from another store in order to reopen the store where the employee worked,” he said.

Smartt noted that in addition to the internal company response, “we also notified the public via social media and the newspaper about why the store was closed and what we were doing to maintain a safe and healthy environment.”

Take-Home Cases

Lawsuits brought by employees who have contracted COVID-19 are not the only concern. Between 7% and 9% of the more than 300,000 U.S. COVID-19 deaths so far are believed to stem from take-home infections, according to Praedicat, a firm that evaluates risks for insurers.

According to Thomas Gies, “we’re seeing the take-home issue across the country. People get infected and go home to their roommate or family members.” If a member of the employee’s household dies of the virus, the employee may sue, even though the household member was never on company premises.

“There’s a long history” of wrongful death cases involving industrial exposures to dangerous substances, Gies said. A case was brought by an employee who said that asbestos fibers brought home on his clothing infected his spouse, who died of mesothelioma.

Kantor said that take-home cases are difficult to prove, but “that cuts both ways. They’re hard for a business to disprove, too.”

In August 2020, the first take-home COVID-19 lawsuits were filed against an electrical supply company and a meatpacking facility, according to Praedicat.

Neither Gies nor Kantor have seen any of these lawsuits brought in the convenience store industry yet, but both expressed concern about the possibility. There’s not a lot of guidance to be given about how to avoid take-home cases, Kantor said, but he recommended the same actions that are used to protect companies from employee lawsuits. Good safety policies and “the more documentation the better.”

Gies agreed. “Pay close attention to CDC, OSHA, state and local government orders. Do your level best to comply, and document like crazy everything you’ve done.”

Stephenie Overman

Stephenie Overman

Stephenie Overman is a workplace writer and author of Next-Generation Wellness at Work.

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