As many businesses across the country have begun to reopen, almost all employers are making efforts to follow guidance from the Centers for Disease Control and Prevention, Occupational Safety and Health Administration and local health agencies to minimize the risk of the coronavirus (COVID-19) exposure to employees. The most common precautions include social distancing, increased sanitization and hand hygiene protocols, use of personal protective equipment such as face masks, daily pre-shift screening, including employee temperature checks, and in some cases, physical barriers between employee workstations and employees. Some employers are screening employees and others are requiring a negative COVID-19 test finding before permitting employees back into the workplace.

However, implementation of all the recommended safety measures notwithstanding, there remains the potential of a sharp rise in workers’ compensation claims by employees who contract the COVID-19 infection after returning to the workplace.

Workers’ compensation has historically been the exclusive remedy available for workplace injuries or illnesses. Employers pay significant premiums on workers’ compensation insurance policies that provide coverage for their employees. It is a no-fault system in which the employee’s medical expenses are covered, and they also receive monetary reimbursement for lost wages if they must be away from work due to the injury or illness.

COVID-19 has created a serious wrinkle in this well-known system. Can the traditional workers’ compensation system operate in a pandemic and its aftermath? In most states, workers’ compensation does not apply to the “ordinary diseases of life.” As is plainly evident, COVID-19 can and does affect any member of the public and is not unique to any workplace. Therefore, state workers’ compensation commissions may consider COVID-19 an “ordinary disease of life” due to the reality of its acknowledged community spread. A determination that workers’ compensation is certainly not applicable could expose the employer to a civil action of negligence. Whether it is a workers’ compensation claim, a work-related illness, or a lawsuit by the employee alleging negligence by their employer that caused the COVID-19, there is a significant problem of proof that the illness was contracted in the workplace. State governments are attempting to find a way to protect employers from major increases in their insurance premiums and at the same time provide benefits at a time when it is most needed in light of the economic disaster caused by COVID-19.

Workers’ compensation claims related to COVID-19 in the workplace while potentially significant, are not the most serious legal issues confronting employers trying to operate during the pandemic or struggling to reopen. Lawsuits claiming a variety of alleged employer misconduct have already been filed (over 2,000 cases), and there are certainly more to come. Many of these lawsuits have alleged intentional conduct by the employer that resulted in employees being exposed to COVID-19. They have alleged that their employer failed to adequately sanitize workspaces, that they have failed to enforce social distancing, that they failed to close the facility when other employees displayed symptoms. Many of the allegations relate more to negligence than actual intentional conduct. However, if an employer has made good faith efforts to implement and consistently enforce the recommended worker safety steps to the extent feasible, it is likely to be successful in defending against such lawsuits.

In view of the constantly evolving guidance on how to mitigate the potential for exposure to the coronavirus, and to properly respond to positive cases in the workplace, it is incumbent on all employers to vigilantly monitor any new governmental guidance or clarification that for will enhance the protection for employees.