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New Developments in Employment Law During the Pandemic: Virus Precautions Can Prevent Expensive Litigation

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Implementing and enforcing safety precautions and social distancing rules is not only beneficial for protecting the community’s most vulnerable populations from COVID-19, but is also valuable in protecting your business from potential lawsuits. 

Precedence indicates that employees cannot sue their employers if they are receiving worker’s compensation. This is known as the exclusive remedy rule. During the pandemic, however, we are seeing that the exclusive remedy rule does not necessarily prevent the court from issuing a preliminary injunction in the plaintiff’s favor. For example, in an Illinois case that gained traction in employment law circles in early June, a county judge asserted that two McDonald’s franchises failed to comply with the governor’s executive order regarding masks and social distancing. Accordingly, the court granted a preliminary injunction to the employee plaintiffs in the suit. The case shows that courts expect businesses to not only establish these policies, but also enforce them. The judge argued that the potential costs to the employees and community if the virus were to spread from these locations were far greater than the costs the franchises would suffer in enforcing mask-wearing and social distancing. [1]

Even if businesses are wary of the costs of implementing proper protections, the potential for lawsuits from employees provides a clear economic incentive to take these steps. The costs of developing protocols, training employees, purchasing the necessary PPE, and implementing contact-tracing is modest compared to the potential explicit costs and public relations costs of a lawsuit. 

An especially important aspect of a reopening plan includes monitoring the potential spread of COVID-19 in the workplace. Contact tracing involves finding and isolating new cases before they spread. There are apps available to help track who you have come in contact with. When tracking employees, ensure that your business is compliant with privacy laws. More information on contact tracing can be found here, a detailed article from the Occupational Health & Safety magazine. 

Businesses should do everything they can to protect their employees and their communities from COVID-19, as well as to protect their business from lawsuits. Going above and beyond the guidelines can only provide further protection.

[1] Childers, A. (June 2020) McDonald’s Ordered to Train Workers on Social Distancing from Business Insurance https://www.businessinsurance.com/article/20200625/NEWS08/912335302/McDonald%E2%80%99s-ordered-to-train-workers-on-social-distancing-Massey-v-McDonald%E2%80%99s-Co# Accessed July 15 2020

[2] Holman, L. (May 2020) Is Contact Tracing the Right Tool for Your Company to Help Combat COVID-19 Spread?  from Occupational Health & Safety https://ohsonline.com/Articles/2020/05/28/Is-Contact-Tracing-the-Right-Tool-for-Your-Company-to-Help-Combat-COVID19-Spread.aspx?Page=1 Accessed July 15 2020

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