Businesses Can Be Liable For COVID-19 Virus Transmission By Employees

There’s much discussion right now regarding whether businesses should remain open in the face of the COVID-19 virus. The debate concerns not only whether the state or federal government should order shutdowns, but whether businesses should voluntarily do so to protect employees, customers, visitors, and others. But there’s another question that few are asking – What liability exposure does a business face if the government allows it to remain open, the business chooses not to voluntarily close, and a COVID-19 infection can be traced back to the business?  

 Little is currently known with certainty about the COVID-19 virus. The virus is a hotly contested topic for the scientific and medical fields. One of the main questions regards the severity of the health and safety risks the virus poses. Let’s assume for purposes of this discussion that, for certain people, a COVID-19 infection can lead to hospitalization or death.

From a negligence liability standpoint, it doesn’t matter how low or high of a risk of serious injury or death the COVID-19 virus poses. Negligence liability instead lies on whether the harm to the person was within a foreseeable zone of risk. I don’t think that anyone could argue that, for some people, a COVID-19 infection could be a serious, if not fatal, health issue. It’s thus quite foreseeable that a person could be seriously injured or die because of a COVID-19 infection.

Look at it this way – If a business fails to clear its sidewalk of ice, say there’s a 1% chance that someone could slip and fall on that ice. Let’s further assume that there’s only a small chance that the 1% of the people who slip and fall are seriously injured. Perhaps bad injuries from that slip and fall would only occur to those who are elderly or have underlying medical issues that increase the injuries caused by the fall. A slip and fall on ice is foreseeable regardless; the slight likelihood of serious injuries as a result does not immunize the business owner from negligence liability for failing to de-ice the sidewalk. The situation’s no different if someone contracts the COVID-19 virus and the virus can be traced back to the business.

Business can be liable for the spread of infectious diseases if the infection can be connected to the business. That’s happened with transmissible diseases before, particularly in the restaurant industry, and it’s likely to happen again regarding the COVID-19 virus. Restaurants, bars, hotels, airlines, cruise ships, hospitals, nursing homes, retirement communities, and other places where many employees and many people are simultaneously packed into a single area are particularly vulnerable to such liability.

The risk isn’t really caused by the business’s customers, because there’s little that a business can do to screen or learn about customers’ COVID-19 status, and thus little basis for a negligence claim because a business can’t act to protect people unless it realizes that there’s an issue. No, the route to liability against a business for a COVID-19 infection will be through its employees. A business can be liable if it hires or retains an employee with a violent background and that employee injures or kills a customer. The negligence principles that underlie such claims, among other negligence concepts, are equally applicable to an employer that employs someone who’s positive for the COVID-19 virus and in turn begins infecting customers and family members of customers and other employees.   

It’s unlikely that such claims would be pursued for minor cases of COVID-19 infection because the value of such claims would be outweighed by the costs of pursuing them, except perhaps in the class action context. Claims are more likely if the infected person requires hospitalization or dies. Now, these will not be easy claims to prove. It has to be established through medical evidence that a COVID-19 viral infection was at least a substantial factor in the person’s death. That infection has to be traced back to the business. And it has to be proved that the business was negligent, perhaps by failing to properly screen its employees or by allowing an employee to work after the employee began describing or demonstrating signs of a COVID-19 infection. The defendant will vigorously dispute all three points in such cases.

Please don’t hesitate to reach out to us if you or a family member have been infected with COVID-19 through interaction with a business’s employees. We’re also available to help business owners with any questions or concerns that they might have about the COVID-19 situation (in addition to negligence liability, businesses also have to be concerned with a COVID-19 outbreak leading to workers’ compensation or OSHA issues). Although the science and medicine concerning COVID-19 may be unsettled, the laws that apply to these situations is well-established. We’re ready to assist.