If you contract COVID-19 while working and think that your employer was at fault, you might wonder whether you can sue your employer. Instead of a personal injury lawsuit, you will likely be limited to filing a workers’ compensation claim for benefits. However, some situations might mean that other legal remedies might be available. The attorneys at Swartz Swidler can help you to understand your rights.
Workers’ compensation after getting COVID-19 at work
New Jersey employers are required to carry workers’ compensation insurance to protect their employees. Employees who contract occupational illnesses or who are injured at work can file claims for benefits through their employers’ workers’ compensation insurance company. In exchange for the ability to file claims for benefits, employees are generally not allowed to file lawsuits against their employers for workplace injuries or illnesses. This means that workers’ compensation is often the sole remedy. IF your claim for workers’ compensation benefits for COVID-19 is denied, you still will not be able to sue your employer in most cases.
However, there may be some exceptions to the exclusivity rule for workers’ compensation. For example, if your employer failed to carry state-mandated insurance, you could file a lawsuit. New Jersey also recognizes an exception when employers have engaged in intentional wrongs as opposed to negligence.
Is an employer’s intentional failure to protect workers an exception to the exclusivity rule?
Some employers have failed to take basic, reasonable steps to reduce the risk that their employees might contract COVID-19. Some examples of these types of actions might include the following:
- Failing to provide face masks, gloves, barriers, or other appropriate personal protective equipment
- Failing to introduce social distancing measures
- Failing to sanitize and clean the workplace properly
Some employers have been accused of intentionally placing their employees at risk by penalizing them for taking time off from work when they are ill or for wearing face masks at work.
While these types of actions might be intentional, the exception for intentional wrongs will not necessarily apply. While New Jersey does recognize this exception, your lawsuit could still be dismissed.
In New Jersey, courts follow the substantial certainty standard when determining whether the exception applies. The court might allow a lawsuit to proceed when there was a substantial certainty that an injury or death would result from the actions of the employer. Whether you might be able to overcome the exclusivity rule will depend on how your judge might interpret the law during the COVID-19 pandemic.
Liability protection for employers from COVID-19 lawsuits
Some states have passed liability protection laws for employers to shield them from COVID-19 liability lawsuits filed by employees who have contracted the virus while working. In 2020, Gov. Murphy signed Senate Bill 2333 into law, which immunized health care facilities, professionals, and systems against liability during the pandemic. However, a bill is currently under consideration that would rescind these protections. Two other bills have been introduced, including Senate Bill 2502 and Assembly Bill 4189, which would provide immunity to employers against COVID-19 liability lawsuits. However, these two bills have not been passed and were introduced in 2020. Even if they were passed, they would not apply when an employer engaged in willful or wanton conduct.
Ability of cruise ship employees to sue
Cruise ship employees who contract COVID-19 while working on a cruise can sue their employers under U.S. maritime law when the ship’s owner failed to take adequate safety precautions to reduce or prevent the spread of the coronavirus on the ship. To succeed, you will need to prove that the cruise line failed to provide a safe working environment and that the company’s negligence at least partly contributed to your illness.
Other legal remedies for coronavirus in the workplace
Attorneys are exploring multiple ways to try to get around the exclusivity rule. Some lawsuits have been filed on the basis that the employers created a public nuisance by endangering the community through their failure to take basic safety measures designed to prevent the spread of COVID-19. Typically, these lawsuits ask for injunctions requiring employers to remedy the unsafe work conditions. Two public nuisance lawsuits against McDonald’s franchisees have resulted in preliminary injunctions in California and Illinois. However, similar lawsuits have been dismissed by federal judges against a meatpacking company and Amazon.
Other lawsuits have been filed alleging wrongful terminations. These lawsuits are generally based on retaliation for complaining about insufficient PPE or safety conditions. Plaintiffs in these lawsuits have argued that they were fired from their jobs for refusing to work during shelter-in-place orders, under their doctors’ orders, or because of dangerous conditions at their jobs.
Constructive termination claims have also been filed. In one case, former employees at a privately-run immigration detention facility filed a lawsuit against their employer. They claimed that they were constructively terminated by their employer because of a lack of PPE or other safety measures to prevent the spread of the virus at the facility.
How an attorney can help
If you believe that you contracted COVID-19 at work or think that you might have a reason to file a lawsuit against your former employer because of the actions it took in response to the pandemic, you should talk to the knowledgeable New Jersey employment law attorneys at Swartz Swidler. Our attorneys stay current with changes in the laws during the pandemic and can help you to understand the options for recovering compensation that might be available to you. Having the help of an experienced attorney who understands the employment laws and workers’ compensation claims might improve your chances of succeeding with your claim. To learn more about the legal remedies that might be available to you, contact Swartz Swidler today by calling us at (856) 685-7420. We offer free, confidential consultations, and you will be under no obligation to retain us when we meet to discuss your potential legal case.