Ask HR: Can I Get Sued If an Employee Catches COVID-19?

By Johnny C. Taylor, Jr., SHRM-SCP June 12, 2020
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Johnny C. Taylor, Jr., SHRM-SCP

SHRM President and CEO Johnny C. Taylor, Jr., SHRM-SCP, is answering HR questions as part of a series for USA Today. The questions are submitted by readers, and Taylor's answers below have been edited for length and clarity.

Do you have an HR or work-related question you'd like him to answer? Submit it here.


Question: I'm a small-business owner, and my state is beginning to reopen. I'm excited to get back to work, but the virus hasn't gone away completely. If one of my employees gets COVID‑19 when they come back to work, could I get sued?

Johnny C. Taylor, Jr.: I'll start by saying congratulations on getting back to work! That's great news. And thank you for asking this timely question. Just last week, news broke that Amazon is being sued for precisely this reason. And you can bet it won't be the only instance.

I have a short, simple answer: Yes, you could be sued.

The Occupational Safety and Health Administration (OSHA) requires that employers provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." In the context of COVID-19, OSHA is advising employers to follow guidelines from the Centers for Disease Control and Prevention (CDC) by taking temperatures, providing personal protective equipment, adding barriers, social distancing, sanitizing surfaces, etc.  

That said, whether you would be held liable is an entirely different question. And the answer depends on where your business is located—and whether Congress takes action.

Although many businesses are advocating a federal COVID-19 liability shield protecting U.S. employers, at present, there isn't one. However, some states have passed laws granting immunity from COVID-19-related litigation.

Some of these state-level protections, such as those in Arizona and Michigan, pertain more narrowly to workers in health care or nursing homes. Others apply more broadly; North Carolina's law, for example, protects essential businesses, while Utah's shields businesses and individuals (with certain exceptions) from litigation when people are exposed to COVID-19 on their property.

Now, depending on the state, an employee may need to prove that he or she contracted COVID-19 while working, which could be challenging to demonstrate. After all, an employee may have been exposed outside the workplace, and it could be difficult to pinpoint precisely where exposure occurred.

In short, business owners can't completely eliminate the possibility of a lawsuit. However, they can minimize the risk by following CDC guidance, and they can help employees feel comfortable by clearly and consistently communicating about these measures, how the measures help, and what workers should do if they have questions or concerns.

I hope your business has a safe and successful reopening!

 

Question: I am a medical biller, and my job duties have been outsourced, with my hours now reduced from 80 to 12.  If I resign, can I file for unemployment?

Johnny C. Taylor, Jr.: Yes, you could file for unemployment if you choose to resign. However, I encourage you to pause a moment before you do so.

As I write this, 52 percent of U.S. employers have either changed their employees' hours or furloughed or laid off workers to reduce costs, and millions of Americans are looking for work.  

If you haven't already, you should have a respectful conversation with your employer. Is the reduction of your hours permanent or temporary? Your employer may be unable to say. But it is worth asking because it enables you to decide whether you should wait before acting, apply for unemployment or perhaps find a new job.

As for unemployment benefits, you can file and may be eligible if you resigned from your job or, in some cases, even if you remain employed.

This is because employees facing factors beyond their control—reduced pay, decreased hours, relocation, medical issues, etc.—may have no choice but to leave their job. I can't speak for your employer, but I would certainly count the COVID-19 pandemic as an extenuating circumstance.  

Ultimately, it will depend on your state. However, most state unemployment offices consider these factors when determining eligibility for unemployment benefits. And, often, they require beneficiaries to pursue "suitable work" while receiving benefits.

You have some tough decisions to make. Is the 12 hours of work enough for you to afford to stay with your employer? Or might it inhibit you from being able to find and take on a new job? Consider these questions, and review your state's unemployment laws before making a final decision. 

As businesses reopen and employees return to work, I hope your hours are increased or you find a new job that fits your needs. Be well, and best of luck! 

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