COVID-19 and Employer Liability

Employer liability protections have been among the most controversial policy debates surrounding COVID-19. With a new administration in the White House and an ongoing debate about additional stimulus measures, the question of whether liability protections for businesses are a good idea has been front and center.

This article aims to provide a neutral overview of the state of the law, share the legal and social considerations associated with COVID-19 liability shields, and explain how companies can best protect themselves from lawsuits.

As of late January 2021, nearly 2,000 COVID-19-related lawsuits had been filed against employers. The subject matter and type of relief sought in these lawsuits vary significantly from case to case. Most cases fall within the following categories:

1. Alleged workplace safety violations and failures;
2. Employee compensation claims arising out of business closures and shutdowns;
3. Age and disability discrimination claims;
4. Family Medical Leave Act (FMLA) and similar state/federal law claims; and
5. Whistleblower and retaliation claims.

In some cases, employees (or the estates of employees who died of COVID-19) are seeking monetary damages based on their employers’ alleged failures. These include, for instance, negligence lawsuits, in which plaintiffs contend that the defendants breached their legal duty of care through various acts and omissions, including failing to develop or implement appropriate safety measures.

Many other suits are seeking injunctive relief. These suits seeks to compel a company to do something or to not do something. This would include, for example, lawsuits seeking to force a company to enact certain protective measures, such as providing PPE.

Rulings

The rulings to this point have been mostly favorable to employers. In Rural Community Workers Alliance v. Smithfield Foods, Inc., employees sought a preliminary injunction that would compel the defendant meat company to enact employee safety measures, including mandating social distancing, providing personal protective equipment, and conducting testing and tracing. In denying the requested injunction, the court held that the risk of injury was too speculative and that the court lacked the authority to grant the requested relief.

At this point, though it is still early days, it appears that COVID-19–related lawsuits against employers are doomed to fail in most cases.

In Palmer et al. v. Amazon.com Inc. et al., a New York federal district court dismissed a lawsuit alleging that Amazon was in violation of New York laws that mandated implementation of various COVID-19 protections. Here too, the court demurred, holding that the Occupational Safety and Health Administration (OSHA) was responsible for overseeing workplace safety requirements.

In New York State Nurses Association v. Montefiore Medical Center, the court denied a request for a preliminary injunction that would have forced the medical center to implement additional safety measures for at-risk nurses. In denying the request, the court reasoned that interfering with the hospital’s decision making during a dynamic and rapidly changing pandemic situation could be “particularly problematic.”

It’s important to recognize that these cases are not being decided on the merits. That is, the courts are not ruling that these companies are, or are not, complying with the law, nor are they commenting on whether the companies are acting responsibly. Rather, the courts are ruling either that they lack the authority to grant the relief sought by the plaintiffs or that granting the requested relief would potentially make matters worse in the future. This may seem indecisive or even callous to some, but it’s fundamentally important for courts to exercise judicial restraint.

Judicial restraint is a principle of judicial interpretation pursuant to which judges refrain from rendering judgment except and unless it will resolve a concrete dispute between adverse parties. In short, judicial restraint encourages judges to limit the exercise of their own power. Court orders, such as those requiring a business to take certain actions, cannot be easily vacated. Meanwhile, COVID-19 is an unprecedented pandemic involving a novel virus about which our understanding is evolving. Expert guidance continues to change as we learn more about the way the virus propagates. Thus, to issue an order mandating companies to implement certain measures—even as the guidance of health experts continues to change and evolve—could ultimately endanger public health rather than protect it. The decision in New York State Nurses Association v. Montefiore Medical Center acknowledges that during a pandemic, the hospital is better suited than the court to make day-to-day decisions and to decide which safety measures are feasible.