Taking Legal Action Against an Employer or Business for COVID-Related Policies and Practices

According to a recent statement by Governor Gavin Newsom, on February 28, 2023, the COVID-19 state of emergency will end in California. By that time, the state of emergency will have been in effect for almost three years. The announcement came – and the ending date moved to next year – due to concerns about a possible winter COVID-19 surge beginning during the upcoming holiday season. The good news, however, is that test positivity rates have recently plateaued in California after three months of steady decline.

According to statewide data, as a result of COVID-19, more than 95,000 individuals have died. In the event COVID-19 cases rise in the upcoming months, Governor Newsom will have broad powers to issue temporary stay-at-home orders, mask mandates, or vaccination mandates, in an attempt to slow down the virus and its spread. Moreover, given the state of emergency’s extension into next year, the governor has the authority to accept approximately $12 billion in emergency response contracts with temporary workforce agencies, protective equipment suppliers, and contracts. However, in the past, some of these contracts involved untested vendors.

Today, there are 27 different provisions from a total of 74 executive orders – all of which the governor issued pursuant to the California state of emergency – which remain effective. However, approximately 500 of these provisions are no longer effective.

Over the past several years, Governor Newsom extended California’s state of emergency a total of five times during the height of the pandemic – the most recent of which occurred in June of 2022. These actions are similar to the federal government’s extension of the ongoing public health emergency until January 11. The federal government has indicated that they will provide the states with a 60-day notice before finally lifting the emergency order.

With the impending end of the COVID-19 pandemic comes the question of taking legal action against an employer for their COVID-related policies and practices, especially when employees – and, by extension, their family members – contract COVID-19 due to an employee’s workplace exposure.

The experienced team of California employment law attorneys at Blair & Ramirez LLP can answer all of your legal questions and determine if you are eligible to take legal action against an employer under these circumstances. If so, we can help you file the necessary claim and pursue the monetary relief you deserve.

For a case evaluation and legal consultation with an experienced California employment law attorney, please call us today at (213) 568-4000 or contact us online for more information.

Thankfully, given the widespread availability of COVID-19 vaccines, capacity limits and physical distancing protocols for businesses are over. However, employees are still responsible for making sure that they provide a clean and safe work area for their employees. Moreover, there are certain steps that employers can take to reduce the risk of infection in the workplace.

First, masks are still recommended for all business employees who work indoors. Workers should also wear masks during COVID-19 outbreaks – and after they return to work after having been in close contact with an infected person. Employers should also make sure that when an infected individual returns to work, they have followed the necessary self-isolation and testing protocols.

Moreover, employers may require that employees be vaccinated before they come to work, assuming the employer:

• Does not retaliate against an employee for taking advantage of activities that remain protected, including a request for a reasonable accommodation.
• Continues to supply employees with reasonable accommodations for their religious beliefs and disabilities.
• Does not harass employees or prospective employees – or otherwise discriminate against them – based upon a protected classification, such as race, gender, national origin, or disability.

Employers also have the discretion to ask employees for proof of their COVID-19 vaccination status. They may take measures to help employees get vaccinated and, if eligible, obtain their COVID-19 booster shots on a regular basis.

While on the Job One important question that has arisen since the start of the pandemic is whether an employee may hold an employer accountable if they contract COVID-19 in the workplace. In most instances, workers who contract an injury or illness while on the job – and while working within the scope of their employment – must resort to the California Workers’ Compensation System. The California Workers’ Compensation Act provides guidelines for when a workplace injury or illness is compensable.

When an injured or ill worker files a workers’ compensation claim, they may be eligible to recover various benefits. Those potential benefits include:

• Compensation for related medical expenses
• Compensation for a portion of their lost wages
• Permanency benefits if a medical provider determines – to a reasonable degree of medical probability – that they suffered a permanent illness while on the job

In the context of workers’ compensation, a permanent injury or illness is one that is unlikely to get better over time.

Since the workers’ compensation system is available to employees who contract COVID-19 while on the job, they cannot file a personal injury claim or lawsuit directly against their employer.

Unlike in a negligence lawsuit or personal injury claim, workers’ compensation benefits are no-fault benefits. Therefore, an injured or ill worker may be eligible to collect these benefits regardless of who caused the incident in question – or how the employee became exposed to COVID-19 while working on the job.

If you contracted COVID-19 while on the job, the experienced California employment law attorneys at Blair & Ramirez LLP can review your legal options with you and take the necessary steps on your behalf. Our team is committed to helping you pursue and recover the compensation and benefits that you deserve.

If you contracted COVID-19 in the workplace, you might be eligible to file a workers’ compensation claim for benefits. Again, these benefits are available to employees regardless of fault. A knowledgeable California employment law lawyer at Blair & Ramirez LLP can help you file the necessary claim for benefits in a timely manner.

To file a workers’ compensation claim, we can submit your medical treatment records and other important documents to your employer’s workers’ compensation insurance carrier. Moreover, we can work with the carrier to negotiate a resolution. If the insurance company refuses to take your condition seriously and will not offer you the full benefits that you deserve, we can pursue your case before the California Division of Workers’ Compensation. Our legal team will do everything possible to help you recover the benefits you need and deserve, regardless of the legal challenges that your employer’s insurance company may raise.

There is no disputing that COVID-19 and its variants are highly transmissible diseases. When an employee contracts COVID-19 while on the job, they can easily transmit the disease to a loved one – or to someone else. The question that then arises is whether an employee’s family member can file a personal injury – or wrongful death – lawsuit against an employer when the employee’s family member contracts COVID-19.

In one recent case, an employee of a candy shop who contracted COVID-19 while on the job sued her employer when she passed the disease on to her husband – and her husband subsequently died as a result. In her wrongful death lawsuit, the employee alleged that her employer was negligent in failing to have the proper safety protocols in place. The lawsuit contained two counts: one for premises liability and the other for negligence.

The California Court of Appeals found that the “bargain” that exists between an employee and an employer – in the context of workers’ compensation cases – does not come into play when a non-employee suffers an illness or injury. The court also determined that the derivative injury doctrine was inapplicable under the facts of the case because although an employee might become infected with COVID-19 while they are on the job, they may not become ill. However, given the high transmissibility of the virus, they can still pass COVID-19 on to a family member or someone else – even if they do not suffer any harm themselves. In its holding, the Court of Appeals determined that exclusivity provisions only apply to claims that depend upon an employee’s own illness or injury. However, claims that biologically result from an employee’s injury or illness are not applicable.

The derivative injury doctrine and exclusivity provisions only apply to non-employees when they suffer individual losses from an employee’s on-the-job injury, such as when an employee suffers a fatal injury while on the job – and while working within the scope of their employment. In those circumstances, the various losses that a worker’s family member sustains, including loss of future income and loss of the decedent’s comfort, care, and companionship, are subject to the exclusivity provisions of California workers’ compensation law. However, if a third party – including a member of the employee’s family – suffers an illness or injury, workers’ compensation exclusivity provisions are inapplicable, even in cases where the biological cause of the third party’s illness or injury is the original workplace injury that the employee sustained. Negligence and other related claims, therefore, are not subject to exclusion.

To prove a negligence claim in the context of COVID-19, an individual must ordinarily demonstrate that the employer owed a specific duty of care to third parties who might come into contact with one or more of their employees. Moreover, the claimant must establish that the source of their COVID-19 infection was the employer’s workplace.

Since proving these legal elements is difficult, the Court of Appeals’ ruling is unlikely to result in endless lawsuits and liability for employers. However, individuals who can establish the negligence elements of their claim can recover various types of monetary compensation via a civil negligence claim or lawsuit.

When a negligence claim or lawsuit is successful, potential damages may include monetary compensation for:

• Ongoing medical expenses
• Lost wages
• Inconvenience
• Pain and suffering
• Mental distress
• Lost quality of life
• Wrongful death

While some negligence claims resolve outside of court via settlement, others may go to trial. If the case proceeds to a civil jury trial, the jury will decide the amount of monetary compensation to award the claimant.

If you are in a legal position to file a claim for workers’ compensation benefits – or a civil claim or lawsuit against an employer or business – the skilled team of attorneys at Blair & Ramirez LLP can assist. First, we can meet with you to discuss the basis for your potential claim and determine your claim-filing eligibility. If you are eligible to file a workers’ compensation claim, we can help you recover the benefits that you deserve.

When it comes to workers’ compensation benefits specifically, insurance companies and their adjusters are frequently difficult. In most cases, adjusters lowball their initial offers and try to offer individuals the lowest amount of compensation with which they can possibly get away. Our legal team can negotiate with your employer’s insurance carrier on your behalf. However, if the insurance company refuses to offer you the benefits you deserve, our legal team does not shy away from taking on insurance companies at a hearing. Throughout your case, we can represent you in all legal proceedings and advocate for your best interests, helping you recover the maximum amount of monetary compensation and benefits available to you in your case.

Finally, if you are eligible to file a negligence claim against a business for its COVID-19 protocols – or lack thereof – we can explain your legal options and help you prove all of the legal elements of your claim. We will fight for your right to recover the monetary damages you need.

For a free evaluation and legal consultation with a skilled Los Angeles employment law attorney, please call today at (213) 568-4000 or contact us online to learn more.