Tuesday, May 19, 2020

Coronavirus Update 5-19-2020: Lawsuit highlights risk of businesses not reopening safely and correctly

An employee has sued a Utah protein bar company after she contracted COVID-19. She claims that she became ill because her employer ignored her safety-related complaints and did not take sufficient steps after other co-workers first got coronavirus. You can read her lawsuit here.

What does the employee claim her employer failed to do in the three weeks between the time during which rumors circulated that two of her co-workers tested positive and she tested positive?

  • Operated the business in violation of federal, state, and local orders regarding the operation of businesses during the COVID-19 pandemic.
  • Threatened employees who raised COVID-19 related safety concerns.
  • Refused to provide employees with PPE.
  • Failed to suspend operations to sanitize the facility.
  • Ignored employees' safety warnings.

For its part, the employer vehemently denies the allegations. From News 4 San Antonio:

Like many businesses, we are doing our best to combat the spread of COVID-19 while simultaneously providing safe jobs and incomes to our employees during this difficult time. For example, while cases were increasing in our state, we voluntarily closed to sanitize our entire facility and put additional safety measures in place. We paid our production employees during this time. We continue to welcome any and all suggestions to improve workplace safety. The allegations of this lawsuit, however, are false. And we are eager to demonstrate our commitment to workplace health and safety in court. We wish anyone suffering from COVID-19, including the individuals who filed the lawsuit, a speedy and full recovery as we all work together to fight the spread of this disease.

Let's assume, for the sake of argument, every allegation in the employee's complaint is true. I still don't see how she wins. It's just way too hard for an employee to establish causation. With community spread by asymptomatic and presymptomatic transmission and without adequate contract tracing in place, I have no idea how an employee proves by a preponderance of the evidence that the exposure the sickened the employee happened at work. But filing a lawsuit and winning a lawsuit are two different animals. This employer will still have to deal with the time and expense of defending the lawsuit, and the impact of the negative publicity that comes with it.

This is why businesses must do everything they can to follow state COVID-19 return to work and reopening guidelines to the letter, and communicate to employees everything being done to help ensure their safety. The best defense is usually a good offense, and in this instance, that offense must start long before your employees even set foot at work.

* Photo by Sharon McCutcheon on Unsplash