Employer Liability is Next Battleground in COVID-19 Pandemic

Nancy Grover

Sarasota, FL (WorkersCompensation.com) – Insurers focused solely on workers’ compensation issues associated with COVID-19 may be missing a major problem area: gross negligence.

“People aren’t thinking about, ‘well how does my return-to-work program, my workers’ compensation risk management program interact with my employer liability program?’” said Joe Paduda. “The point being, if you’re not screening your employees, making them go to the meat packing plant and pluck chickens and not ensuring they are safe, and they go home and infect someone, then you’re liable – it’s negligence.”

Paduda, Principal of Health Care Associates is finalizing his second survey of the impact of COVID-19 on the workers’ compensation system. After questioning more than 30 representatives of insurance carriers, third-party administrators, government entities and self-insured employers, the issue of liability has emerged as one of the issues causing consternation.

“Several insurer execs voiced deep unease about general liability-related issues related to employees contracting COVID at the workplace,” Paduda wrote in his Managed Care Matters blog. “If those workers go home and family members become infected, there’s concern the employer may have some degree of liability. Especially if they knowingly flaunted or ignored safety guidance.”

Concerns about potentially significant liability prompted several insurance trade associations to join with the U.S. Chamber of Commerce and hundreds of additional organizations calling on Congress to pass legislation to protect them. In a letter to lawmakers this week, the signers urge passage of temporary liability relief legislation to protect companies from an “onslaught of frivolous lawsuits.”

“The prospect of such litigation and associated exorbitant legal costs are a deterrent to reopening,” the letter states. “Further, this litigation could devastate those entities that are just beginning to reopen their doors or have kept them open throughout the crisis.”

The letter asks for quick enactment of temporary liability protections for:

  1. Businesses, non-profit organizations, and educational institutions that work to follow applicable public health guidelines against COVID-19 exposure claims
  2. Healthcare workers and facilities providing critical COVID-19-related care and services
  3. Manufacturers, donors, distributors, and users of vaccines, therapeutics, medical devices, as well as PPE and other supplies (such as hand sanitizer and cleaning supplies) that are critical to the COVID-19 response
  4. Public companies “targeted by unfair and opportunistic COVID-19-related securities lawsuits”

“In addition to being temporary, we believe that these liability protections should be limited in scope and preserve recourse for those harmed by truly bad actors who engage in egregious misconduct.”

Among those signing the letter were the American Property Casualty Insurance Association and the National Association of Mutual Insurance Companies.

Companies such as Tyson Foods have faced litigation over COVID-related deaths.

But some organizations say liability protection only allows companies to avoid responsibility for worker safety.

“We cannot successfully reopen businesses and public institutions if workers and consumers aren’t safe and don’t have confidence in their safety. In order to achieve that safety and confidence, workers and consumers must be able to hold employers accountable for unsafe workplaces and other violations of the law,” said Rebecca Dixon, executive director of the National Employment Law Project, in recent testimony before the Senate Judiciary Committee. “Were Congress to grant employers the immunity that some have long sought, it would create disincentives for even law-abiding employers to protect their workers — producing a race-to-the-bottom for workplace standards — and would cause a health and safety disaster, with new hot spots across sectors and spread across communities.”

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