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The Novel Coronavirus Is Giving Rise to Novel Lawsuits Against Employers

The Novel Coronavirus Is Giving Rise to Novel Lawsuits Against Employers Background Decorative Image

Typically, an employees’ exclusive remedy for work-related injuries is through their state’s workers’ compensation system. As an example, suppose an employee suffers a work-related injury as a result of her employer’s negligence. If she brings a suit to recover for that negligence against her employer, a court would likely dismiss it because workers’ compensation affords her an exclusive remedy for her work-related injuries. Similarly, an employee’s public nuisance suit that seeks to recover damages from an employer would likely be barred by the exclusive remedy rule.

An issue now being evaluated by courts is whether this exclusive remedy principle bars employee suits for public nuisance injunctive relief. The case law addressing this question is relatively scarce, but not all courts take the view that the exclusive remedy principle bars all actions in tort against employers. Take the recent Massey v. McDonald’s Corp. as an example. In that case, an Illinois trial court granted in part plaintiffs’ request for a preliminary injunction (but not damages) against two McDonald’s franchises due to their alleged failure to implement adequate safety guidelines to address COVID-19 risks, which the court concluded likely contributed to the spread of COVID-19 in the community. In the wake of this highly publicized lawsuit, similar claims may follow.

To limit potential exposure to these lawsuits, businesses should familiarize themselves with, and adhere to, applicable local, state and federal safety guidelines and implement safety measures specific to their work environment. That may include providing training on social distancing practices, issuing personal protective equipment, and implementing COVID-19 screening and contact-tracing processes. Also, good communications with employees about the safety measures that an employer is implementing may help keep the employer out of these novel law suits, as workers may not believe there is a need to pursue injunctive remedies if they are comfortable that their employers are taking sufficient steps to keep the workplace safe.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.