One of the many questions on employers’ minds is whether they can be held liable for negligence and other related torts if an employee becomes ill or, in the worst case, dies, from COVID-19. Well over a year into the pandemic, courts are still grappling with these issues and employers’ defenses have had mixed success. However, even in the unique work environments of the construction industry, employers that stay abreast of guidance and follow the rules will likely have a solid defense to any such claim by an employee.

No matter the industry, many, if not most, lawsuits by employees against employers for illnesses and damages related to COVID-19 are (or at least should be) barred by the exclusivity provisions of workers’ compensation acts. For example, in Pennsylvania, as in many other jurisdictions, an employer’s behavior must be sufficiently outrageous to overcome the exclusive remedy provided by the Workers’ Compensation Act. Thus, most businesses should be able to rely on their workers’ compensation insurance as the first line of defense.

Of course, workers’ compensation insurance generally covers employees only—not self-employed persons such as subcontractors. These individuals (or their employees) may turn to the general contractor to assert a claim if they become ill. This underscores the importance of well-drafted subcontract provisions regarding workers’ compensation, indemnity and the like.

Even for employees, workers’ compensation coverage is not a given. In the absence of unique circumstances, a COVID-19 diagnosis is unlikely to be considered a work-related injury or disease entitling an employee to workers’ compensation benefits because of the community spread of the virus and the difficulty in proving causation. However, some states have enacted legislation regarding presumptions of coverage or causation related to COVID-19. Of these states, much of this legislation is geared towards first responders and health care workers. Nonetheless, several states, such as New Jersey, have created a rebuttable presumption of workers’ compensation coverage for broadly defined groups of “essential” workers, which could include, for example, construction workers.

Despite the protections afforded by workers’ compensation insurance, employees or families of deceased employees have filed negligence, wrongful death and/or other tort actions against employers, alleging that the employer failed to protect employees from exposure. The construction industry seemingly escaped the majority of these lawsuits, as many centered on the meat-packing, healthcare and large-scale retail industries. Nonetheless, given the increasing breadth of these lawsuits, no industry is immune.

One particularly illustrative suit is Kuceimba v. Victory Woodwork, Case No. 3-20-cv-09355-MMC in the Northern District of California. In Kuceimba, a plaintiff filed suit against her husband’s employer alleging that she contracted COVID-19 at home from her husband who contracted COVID-19 at a construction jobsite. The complaint asserted that the employer failed to quarantine sick or exposed workers, and instead, transferred those workers to a different jobsite where they commingled with others, including the plaintiff’s husband. The employer moved to dismiss the claim based on workers’ compensation exclusivity, and the court agreed, finding that her injury was dependent entirely on her husband’s work-related injury. The plaintiff then filed an amended complaint, this time alleging the infection was transmitted through her husband’s clothing—not through his body—seemingly trying to avoid workers’ compensation preemption. The employer again moved to dismiss. On May 10, 2021, the court again dismissed her claim, ruling that an employer’s duty to provide a safe work environment did not extend to non-employees.

Although this is a favorable outcome for employers, it illustrates the creativity with which plaintiffs and their attorneys are bringing such claims.

Hundreds of COVID-19 complaints brought by employees are working their way through state and federal courts. In at least one case, a federal district court judge in Missouri dismissed a complaint by an employee and nonprofit workers group on the basis that state and federal regulators—not the courts—are best suited to handle complaints about workplace safety issues and compliance with agency guidance. Rural Community Workers Alliance v. Smithfield Foods, Inc., No. 5:20-cv-06063 (W.D. Mo.). Given that many construction projects and contractors are highly regulated by the government—whether through OSHA standards, government contracting provisions, etc.—courts could perhaps apply the same principle to construction industry lawsuits.

Finally, several states have enacted so-called “business liability shield” laws. While these laws vary wildly, none provide absolutely immunity to employers. Rather, they often exclude claims based on gross negligence, intentional misconduct or recklessness. Since typical negligence claims are generally covered by workers’ compensation, employers would be wise not to rely on these laws for protection.

Of course, the best defense to a COVID-19-related employment claim is a good offense. Employers should stay abreast of the ever-changing federal, state and local guidance for businesses, including those specifically targeted to the construction industry. For some construction industry employers, this may mean coordinating and collaborating with others—contractors, subcontractors, owners, and, where appropriate, counsel—to ensure safety and minimize the risk of employment claims.