Most people intuitively grasp how to avoid physical injury in the workplace. When the COVID-19 pandemic hit the U.S. in early 2020, it quickly became clear that viral illness can also pose a workplace danger. Employers were suddenly called upon to mitigate their employees’ risk of being exposed to the coronavirus at work, while also finding it necessary to pivot to keep their business accessible, relevant, and afloat in uncertain times.

Further obstacles emerged when states enacted stay-at-home orders, as some jobs—such as grocery work, utility services, or scientific research—could not be executed from home. Companies had to learn a new way to conduct business, while facing new concerns about health and safety in the workplace. For workers deemed essential, who continued to work on-site, the possibility of being infected with COVID-19 was a real risk.

Under workers’ compensation rules, a claimant must prove that an injury or illness happened at work, which led many businesses to believe they were safe from legal action should an employee contract COVID-19. It seemed unlikely, given the exponential rate of community spread, that one could prove to have contracted the coronavirus in the workplace.

Nevertheless, COVID litigation has been developing. Under state law, cases can usually only be filed in court for workplace injury or illness if there is negligence or nuisance. Three such cases were brought against notable defendants including Amazon, McDonald’s, and Walmart in the first half of 2020.

  • In a wrongful death suit against a Walmart in Illinois, employees alleged that the store failed to properly sanitize, implement social distancing, and provide masks and gloves, and did not adequately maintain contact tracing protocols.
  • In a nuisance suit against an Amazon distribution center in New York, employees alleged there was only a “facade of compliance” when it came to guidelines on how to prevent the spread of COVID-19. For example, the case alleged that Amazon aggressively tracked

each minute of the employee’s shift to ensure they were on task, making breaks for hand washing or sanitizing workstations nearly impossible.

  • In a separate nuisance suit against a McDonald’s restaurant in Illinois, employees sought to have masks, gloves, and hand sanitizer supplied, and demanded that safety policies be enforced for mask wearing, social distancing, and contact tracing.

Interestingly, the plaintiffs in these cases were not seeking monetary damages but rather asking the court to force the businesses to adhere to guidelines intended to create safe working environments during the pandemic. Allegations about business often enter the court of public opinion, which can affect a company’s bottom line.

“Companies had to learn a new way
to conduct business, while facing new
concerns about health and safety.”

As COVID-19 issues and litigation have the potential to affect any business, it is important to stay current on new developments. The COVID-19 litigation in 2020 focused on how companies were (or were not) seeking to minimize the spread of illness in the workplace. From these cases, we see keys to mitigating the risk of being the subject of COVID-19 litigation, primarily by staying updated on pandemic guidelines issued by national or local agencies, and implementing—and actually enforcing—protocols regarding sanitization, masks, gloves, and social distancing. As liability and exposure to legal causes of action differ in each state, it is also important that companies monitor local case law developments and legislative action.

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