The ongoing SARS-CoV-2 or viruses mutating therefrom and the resulting disease COVID-19 pandemic (“COVID-19 pandemic”) is infecting people wherever and whenever they gather and causing significant illness, death, social disruption, and economic loss. Our serious policymakers’ primary concern continues to be minimizing illnesses and deaths, but a vital secondary concern is the successful rebound of our economy. Once it’s deemed sufficiently safe to restart business, an emerging worry is the liability associated with the resumption of business activities during the ongoing COVID-19 pandemic. What should be done?
Pandemics
Pandemics are rare disease-related events in which victims have no previous exposure to the disease, little or no preexisting immunity, and increased risk of serious complications or death. During pandemics, health systems may be overwhelmed, vaccines may not be available, and effective antiviral drugs may be nonexistent resulting in major societal impacts (restrictions on travel, school and business closings, and cancellation of public gatherings, etc.) and severe economic shocks.
During the past few centuries, pandemics have occurred roughly every thirty to forty years. Typically, these follow similar patterns. They initially spread irregularly with clusters of people infected and are followed by waves of widespread illness with twenty to forty percent of the population infected within the subsequent four to eight months. (In comparison, about ten percent of people gets sick in a typical flu season.) Further waves of infection follow. Death rates fluctuate from wave to wave.
In the 20th century, the 1918 H1N1 (“Spanish flu”) pandemic was the deadliest. It killed an estimated 675,000 U.S. residents and from 50 to 100 million people worldwide (approximately 1% of the world’s population at that time)[1]. In 1919, the average American life expectancy was reduced by twelve years,[2] mainly due to its many victims under the age of 40-years-old. And the pandemic continued until early 1920. By its conclusion, virtually everyone in the world was exposed to the virus.
The COVID-19 pandemic is emerging as the deadliest and costliest pandemic since 1918. Without the maintenance of adequate social distancing, the consistent use of personal protective equipment (“PPE”), and the general public’s adherence to the public health community’s directives, it could surpass the devastation of the Spanish flu pandemic.
COVID-19 and Liability
Public health and the economy are dual concerns in the COVID-19 pandemic. Indeed, many U.S. policymakers’ perception is:
If people aren’t alive and healthy, the economy can’t function. If the economy isn’t functioning, people can’t afford to stay alive and healthy.
They assert their perception of competing concerns as fact, and believe that the longer it takes to restart the economy, the more likely it becomes that problems will accumulate. Accepting these policymakers’ axioms as fact, further actions that might catalyze the economy’s resurgence are being welcomed. Currently many business leaders and policymakers are contemplating a blanket waiver of COVID-19 liability with respect to businesses. It’s unclear exactly what this entails, but it could mean, for example:
- If your salon opens now and a disproportionate percentage of your customers develop COVID-19, your business is immunized from liability, or
- If your gym opens now and any of your employees develop COVID-19, your business is immunized from COVID-19 workplace illness claims.
The first example deals with a business’s general liability. Effective February 4, 2020 through October 2024 (unless extended),the COVID-19 Liability Immunity Declaration[3] under the Public Readiness and Emergency Preparedness Act of 2005 (“PREP Act”) extended liability immunity to those businesses such as manufacturers, distributors, and their officials, agents, and employees that were authorized to prescribe, administer, deliver, distribute or dispense any antiviral, drug, biologic, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, the transmission of SARS-CoV-2, or a virus mutating therefrom, or “any device used in the administration of any such product, and all components and constituent materials of any such product.” Essentially, this covered all businesses that manufactured or delivered drugs, medical devices, and PPE related to COVID-19 treatment and services. Broadly speaking, this liability immunity is in the public’s interest since “willful misconduct” is excluded from immunity and since these COVID-19-related goods and services are needed on an emergency basis and known, effective vaccines and treatments for COVID-19 do not currently exist. Also, willful misconduct is a high bar for liability since it requires conclusive evidence of an act or omission that is intentional to achieve a wrong; knowingly without legal or factual justification; and in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit. Aside from this COVID-19 liability immunity which is limited in its scope and duration, however, no other general or professional liability immunity for businesses makes sense.[4]
COVID-19 and Workers’ Compensation
With respect to the second example, liability immunization for a specific illness could potentially undermine the concept of workers’ compensation. In the area of workers’ compensation, to be considered an “occupational disease” (in other words, a disease compensable under workers’ compensation), a disease must arise out of or be caused by conditions unique to (or, at least, peculiar to) the work.[5] A classic example is black lung disease and coal mining. Unless a disease arises out of the job (and not because the worker simply was at their job) workers’ compensation would not usually apply.[6] For example, with respect to COVID-19, work exposures might traditionally be broken down into the following distinct risk categories:
- Very high risk jobs[7] are those jobs with likely exposure to known or suspected sources of COVID-19 during a specific medical or laboratory procedure.
- High risk jobs[8] are those jobs with high potential for exposure to known or suspected sources of COVID-19.
- Medium risk jobs[9] include jobs that require frequent contact with known or suspected sources of COVID-19 such as coworkers, the general public, outpatients, students, or other such individuals or groups.
- Lower risk jobs[10] are those that do not require contact with people known to be infected with the COVID-19 producing virus, nor frequent contact with the public.
While workers’ compensation rules vary by state, compensable claims are fact specific. Each state has specific rules in regards to what’s covered. In some cases, workers’ compensation coverage for contracting COVID-19 might not be an issue, for example in the very high risk jobs noted above (and perhaps the high risk jobs). In the medium and lower risk jobs, however, it may be tougher to prove where the exposure to the disease took place. In other words, was the exposure in the course and scope of the employment or not?
During the Spanish flu, the typical answer to this occupational illness query was, “There could, of course, be only one answer to these inquiries, that the influenza, though a great misfortune, could not by any stretch of imagination be considered as an accident arising out of employment.”[11] During the present pandemic, though, this answer may not hold, especially since the concept of “essential workforce”[12] has arisen. If an employee is an essential worker, their work is vital to “maintain continuity of operations of essential critical infrastructure sectors and additional sectors … critical to protect [the] health and well-being of all.”. As such, COVID-19 as an occupational illness should be considered compensable, and perhaps presumptive, for essential workforce under workers’ compensation laws.
COVID-19 and the Near Future
To protect their employees from COVID-19 in the workplace, all employers should work toward the implementation and maintenance of safe workplaces as follows:
- Develop comprehensive infection control programs to help prevent the spread of the virus,
- Develop exposure control (blood-borne pathogens) plans,
- Monitor workers’ health,
- Train workers[13],
- Post warning signs and labels,
- Keep the workplace clean,
- Keep good employee medical records,
- Require flu vaccinations,[14] and
- Provide appropriate and adequate PPE.[15]
Businesses should unify to protect their customers and their employees during this time of crisis. The uncertainty of a novel disease such as COVID-19 generates fear independent of anything policymakers do or do not do. This fear is compounded by increasing unemployment, by the lack of guaranteed healthcare, and by the repeated instances of false reassurances and cherry-picked data communicated by the authorities and the media. Systematically destroying the public’s trust and presenting contradictory, simultaneous policy options magnifies fear and potentially morphs into panic and terror. Policymakers and authorities must tell the truth and work toward unified solutions in this crisis. Let’s not wait for hindsight to reveal our response shortcomings. Let’s act responsibly now.
If people aren’t alive and healthy, nothing else matters.
[1] Source: https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html .
[2] Source: https://blogs.cdc.gov/publichealthmatters/2018/05/1918-flu/ .
[3] Source: https://www.phe.gov/Preparedness/legal/prepact/Pages/COVID19.aspx .
[4] Affording liability immunity to a business during the COVID-19 pandemic only economically benefits the business if the disease is still spreading. If the disease is still spreading and a business is open, it is not in the public’s best interest to subsidize an economic activity that is likely harming its citizenry.
[5] If a worker gets COVID-19, they may be covered under the protections of the Family and Medical Leave Act (“FMLA”) which gives workers the right to time off from work (unpaid) with continuation of health insurance. And the law prohibits an employer from discriminating against workers for absenteeism for the time off. A worker may also be entitled to time off from work (unpaid) to care for his or her spouse, child, or parent who gets COVID-19. In addition, there may be a state law (depending upon each person’s specific locale) which gives workers similar or better protections.
[6] Under Section 11(c) of the OSH Act, workers have limited rights to refuse to do a job if they believe in good faith that they are exposed to an “imminent danger” (danger of death or serious injury). This may apply to workers who are required to have close contact with people with suspected or confirmed cases of COVID-19 when appropriate protections are not in place.
[7] These would include healthcare employees (for example, doctors, nurses, and dentists) performing aerosol-generating procedures on known or suspected pandemic patients and healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients.
[8] These might include healthcare delivery and support staff exposed to known or suspected COVID-19 patients (for example, doctors, nurses, and other hospital staff who must enter patients’ rooms), medical transport of known or suspected COVID-19 patients in enclosed vehicles (for example, emergency medical technicians (“EMTs”)), personnel who perform autopsies on known or suspected COVID-19 patients (for example, morgue and mortuary employees), and other critical infrastructure and key resource employees (such as law enforcement, emergency response, prisons, jails, and public utility employees).
[9] These might include employees with high-frequency contact with the general population (such as employees who work in schools, commercial aircraft, high population density work environments, delivery personnel, and high volume retail clerks).
[10] These might include employees who have minimal occupational contact with the general public and other coworkers (for example, office employees).
[11] Source: Second Annual Report of the Workmen’s Compensation Board of the Province of British Columbia for The Year Ending December 31st 1918, Page U11.
[12] Source: https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf .
[13] Decide on the best ways to control the spread of the virus using the “hierarchy of controls.” Since the virus cannot be eliminated, using engineering controls is the best option to control the spread of the virus. This is followed by safe work practices, administrative controls, and personal protective equipment.
[14] Statistics show that approximately 63% of all health care workers are currently vaccinated compared with only 40% of the general public. Eventually (and hopefully) SARS-CoV-2 and its mutations will be included in future vaccines. Many states do not currently requires vaccines, see https://www2a.cdc.gov/vaccines/statevaccsApp/AdministrationbyVaccine.asp?Vaccinetmp=Influenza .
[15] For example, OSHA requires that any time employers require workers to wear respirators, employers must follow OSHA’s Respiratory Protection Standard 1910.134. This standard includes requirements for fit-testing and worker training.