July 10, 2020
As COVID-19-related lawsuits against employers continue to rise, several states have adopted laws providing some liability relief against claims based on exposure to the disease, while avoiding protections for non-exposure claims, such as discrimination. Lawmakers in Iowa, Kansas, Louisiana, Massachusetts, North Carolina, Oklahoma, and Wyoming have passed laws that vary in approach.
Following guidance is key: The laws generally provide immunity from liability from COVID-19-related claims where the employer is acting in good faith in accordance with federal, state, or local guidance, and where the employer is not intentionally or recklessly negligent. In some states, the liability shields generally cover all employers, while in others, the immunity is limited to health care providers or other front-line industries. Further, some of the states require notice to third parties of the liability limitations.
Protections against all employment suits still lacking: While the measures provide immunity against COVID-19 exposure-related claims, they do not extend these protections to a variety of other employee-brought suits that have proliferated during the pandemic. Such claims include compensable time issues related to COVID-19 screening procedures, paid and unpaid leave, age, disability, and pregnancy discrimination, and working from home issues, among others. HR Policy has detailed the various employment law requirements employers must consider as they work to reopen workplaces while ensuring worker safety.
Meanwhile, COVID-19 workplace suits continue to increase steadily. New claims have increased each month since January, and more than doubled between April and June. The most common claims brought include employment discrimination—usually on the basis of age, disability, or pregnancy—and issues addressing working from home or leave.
Outlook: Around a dozen more states are considering implementing liability shields for employers as infection rates continue to surge around the country. As noted below, Congress is expected to take up the issue in its next round of COVID-19 relief legislation, although any sort of federal liability shield will likely be a product of significant negotiation and compromise. In the meantime, employers should take care to closely and continuously follow local, state, and federal safety guidance, as doing so could be a key factor in protection against COVID-19-related litigation.
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