By Emily Hyatt
California Western School of Law
After months of sheltering at home to flatten the curve of the novel coronavirus, Americans are reopening non-essential businesses.[1] Yet, the issues businesses face in reopening are far worse than any faced in shuttering their doors.[2] The United States government has provided guidance on reopening businesses in a three-phase approach called “Open America Up Again.”[3] The purpose of the phased approach is to maintain the success of the shelter in place orders in flattening the curve, thereby continuing to protect the health and safety of American citizens. As there is “no vaccination or effective treatment available to combat COVID-19, society is relying on preventative measures such as social distancing and disinfecting to slow or halt the spread of the virus.”[4] In Phase One, employers are instructed to “close common areas where personnel are likely to congregate and interact or enforce strict social distancing protocols.”[5] However, the three-phase approach provides little guidance on the biggest challenge facing employers upon reopening – “a minefield of potential liabilities.”[6]
It is the fear of lawsuits that will keep many businesses closed longer than they need to be.[7] With an overwhelming array of potential liabilities in this uncertain time, one area that may go unnoticed is the intentional acts of employees violating Phase One requirements. In these challenging times, with constantly changing information, some individuals find the regulations on social distancing and wearing masks restrictive. Particularly, employees dealing with increasingly stressed and difficult customers may choose to violate the Phase One mandate and congregate with other employees. Indeed, just the absence of human-to-human contact over these past months may incentivize many employees to break the social distancing rules to obtain a sense of normalcy.
It is therefore imperative that a rule regarding employer liability contribution for an employee that intentionally violates the Phase One mandate be established. The Kontecki rule, explored in this article, should be adopted as a national standard, as well as three additional modifications to torts law to achieve clarity and direction for these specific COVID-19 lawsuits.[8] This article will explore the importance of the Phase One social distancing mandate and tort liability for an employee intentionally violating this mandate. Additionally, it will explore potential solutions to address this legal uncertainty, such as the Kontecki rule, and provide recommendations for preventing and deterring violations of this nature.
TORT LIABILITY OF EMPLOYEE INTENTIONALLY VIOLATING PHASE ONE OF OPEN UP AMERICA AGAIN
As businesses reopen through a pandemic, grappling with stalled sales and lost income, a major fear is that employees who get sick with COVID-19 will claim they contracted it at work and file a lawsuit.[9] To prevent this, businesses are taking major steps to improve the sanitation of workspaces and the implementation of policies supporting social distancing.[10] However, a business cannot function by continuously monitoring and micromanaging its employees. What happens if an employee, without the knowledge of the employer, intentionally violates the Phase One mandate to maintain social distance?
First, it is important to address why social distancing is so important. “SARS-CoV-2 is highly contagious; it appears to spread from person to person through respiratory droplets produced when an infectious person coughs, sneezes, or talks, and the virus can be spread by presymptomatic, or even asymptomatic, individuals.”[11] The virus causes a respiratory illness which makes even the strongest person exhausted from the difficulty of breathing. Thus, public health officials have heralded the vital importance of wearing masks, washing hands, and maintaining distance so as not to perpetuate the spread of infection.
An employee that intentionally violates the social distancing mandate takes an unnecessary risk of infecting a co-worker and subjecting them to this harm. There are at least two ways in which an employee intentionally violating the social distancing mandate could be liable under tort in a civil court: (1) battery or (2) negligent transmission. These torts have been used in the past to resolve disputes involving other infectious diseases, such as HIV, tuberculosis, whooping cough, typhoid fever, and small pox.[12] Both claims can be plead in a single complaint, but they differ in important ways. These differences and their significance become apparent upon examination of the elements of each claim.
SARS-CoV-2, which leads to COVID-19, is highly contagious, and it may be difficult to prove exactly where and from whom it was contracted.[13] However, those who intentionally or recklessly violate the Phase One mandate can be sued for breaches that lead to the infection of this dangerous disease. The differences between these two torts provides a greater possibility for justice. Battery requires proof of intent, while negligent transmission only requires a duty to act as a reasonable person would. Negligent transmission requires proof of “knowledge” of a COVID-19 positive status, whereas battery may only require an intent to contact. Thus, a suit will likely be more successful, at least at the motion to dismiss stage, if both allegations are pled.
POTENTIAL SOLUTIONS TO ADDRESS LEGAL UNCERTAINTY AND PROMOTE DETERRENCE OF VIOLATIONS
Legal Uncertainty creates disincentive for businesses to take the risk of reopening.[14] While liability of an employee often leads to a business footing the entire bill, it does not have to. Legal precedent regarding intentional torts and negligence can act as a guide. In Kotecki v. Cyclops, the court recognized that the Workers’ Compensation Act gives an employer immunity from tort actions by its employees, but there is no bar to a claim for contribution from the employer by a defendant held liable to that employee.[15] The court then acknowledged that a majority (forty-five) of jurisdictions do not allow a contribution action against an employer, from a defendant sued in tort, by an injured employee.[16] New York was an outlier allowing a defendant to recover unlimited contribution from negligent employers.[17] However, after reviewing the rule in Minnesota, the Supreme Court of Illinois chose to establish the Kotecki rule – an employer could be required to contribute, if negligent or willful and wanton[18], but the amount of an employer’s contribution would be limited by its workers’ compensation statutory liability.[19] This rule supports “the central concept behind workers’ compensation, i.e., that the employer and employee receive the benefits of a guaranteed, fixed-schedule, nonfault recovery system, which then constitutes the exclusive liability of the employer to his employee.”[20] If contribution or indemnity is allowed, the employer may be forced to overpay for an employee’s intentional tort.[21] If contribution or indemnity is not allowed, an employee liable of negligent transmission is made to bear the burden of a full common-law judgement despite possibly greater fault on the part of the employer.[22] The Kotecki rule, therefore, is a balance, designed to allow third parties to obtain some contribution from employers, while preserving the employer’s right to rely upon the protections of the Workers’ Compensation Act.[23]
Additionally, if existing tort laws were modified – in regards to battery and negligent transmission of COVID-19 cases only – to create a single standard that would apply nationally rather than state by state (as tort law typically operates), it would provide clarity on employee acts.[24] This is important because then the statutory amount for contribution could be less for employee acts that are intentional or negligent under the Worker’s Compensation Act then the statutory amount for contribution of accidents.[25] This could be done by establishing in all states: (1) the element of intent for battery requires intent to make contact and cause harm or offense; (2) legal duty of reasonable care exists if an employee knew or should have known that they were COVID-19 positive, and (3) safe harbor for businesses that can show they were not negligent or willful and wanton in testing employees at work and took reasonable care to enforce social distancing policies. To accomplish this, the legislature and the courts would need to work together[26] and the Kotecki rule should apply retroactively.[27]
This would also provide a way to promote deterrence of employees intentionally violating the Phase One mandate. Employees intentionally violating this mandate would be required to pay most of the damages and if found liable for battery, even punitive damages. In a case of negligent transmission, only compensatory damages should be given. For cases in which the employee was found liable for battery and the harm was only offense, i.e. COVID-19 was not transmitted, then the damages should only be nominal.
CONCLUSION
Without a vaccine or effective treatment, sheltering at home was required to flatten the curve of COVID-19. As businesses begin to reopen, social distancing stands out as an easy and effective way for businesses to promote the safety and health of their employees. Employees who intentionally violate the social distancing mandate of Phase One of Open Up America Again can be held accountable under torts law. It is essential for businesses to be aware of their role in this litigation. By having a national standard for employer contribution liability, such as the Kontecki rule, businesses would be better able to understand this role and have less legal uncertainty. Businesses aware that they can lower their contribution to employee liability cases will be more likely to enforce the social distancing policies and diligently check on their employees’ well-being. Employees aware that they will bear the burden of the damages by their intentional or reckless acts will be incentivized to follow the social distancing mandates. Only then will it be possible to slow the spread of the virus and allow America to reopen again.
[1] See Rural Cmty. Workers All. v. Smithfield Foods, Inc., No. 5:20-CV-06063-DGK, 2020 WL 2145350, at *1 (W.D. Mo. May 5, 2020) (providing background on severe acute respiratory syndrome coronavirus 2 (“SARS-CoV-2”) and the coronavirus disease 2019 (“COVID-19”) that led state governors to issue stay-at-home mandates).
[2] E.g., Chris Marr, Businesses Face Moving Targets in States’ Safe Reopening Plans, BLOOMBERG LAW (May 14, 2020, 3:01 AM), https://news.bloomberglaw.com/dailylabor-report/businesses-face-moving-targets-in-states-safe-reopening-plans (explaining additional burdens on businesses for reopening).
[3] Guidelines Opening Up America Again, Phase One Employers, THE WHITE HOUSE, https://www.whitehouse.gov/openingamerica/ (last visited June 27, 2020).
[4] Brigette Honaker, Walmart Faces Lawsuit After Employee Dies From COVID-19, TOP CLASS ACTIONS (April 8, 2020), https://topclassactions.com/lawsuitsettlements/lawsuit-news/coronavirus-covid-19/walmart-faces-lawsuit-after-employee-dies-from-covid-19/.
[5] Guidelines, supra note 3.
[6] Alexia Elejalde-Ruiz, If You Get Sick With COVID-19, is Your Employer Liable?, CHICAGO TRIBUNE (May 4, 2020, 10:25 AM), https://www.chicagotribune.com/coronavirus/ct-coronavirus-employer-liability-workplace-exposure-20200501-dye6husnszchpnpaadiensn2ja-story.html.
[7] See Noah Feldman, A Solution to the Covid-19 Liability Problem, BLOOMBERG LAW (April 27, 2020, 1:30 PM), https://www.bloomberg.com/opinion/articles/2020-04-27/covid-19-lawsuits-are-a-tough-question-for-reopening-businesses.
[8] Kontecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 159 (1991).
[9] See Elejalde-Ruiz, supra note 6.
[10] See Smithfield, 2020 WL 2145350, at *1 (“On April 9, [2020,] the Centers for Disease Control (“CDC”) published Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), which outlined several policies and procedures employers should implement to help prevent workplace exposure and community spread of the virus.”).
[11] Id.
[12] See Doe v. Johnson, 817 F. Supp. 1382, 1389 (W.D. Mich. 1993).
[13] See Smithfield, 2020 WL 2145350, at *1.
[14] See Feldman, supra note 7.
[15] 146 Ill. 2d at 159.
[16] Id. at 163.
[17] Id.
[18] Lannom v. Kosco, 158 Ill. 2d 535, 540 (1994) (holding the Kotecki rule is not limited to cases where the direct defendant alleges that the employer’s conduct was negligent, rather than willful and wanton).
[19] Kontecki, 146 Ill. 2dat 164.
[20] Kotecki, 146 Ill. 2d at 162-63.
[21] Id.
[22] Id.
[23] See Lannom, 158 Ill. 2d at 540-41(explaining how “[u]nder the Workers’ Compensation Act, employers must pay their employees compensation for accidental injuries arising out of and in the course of employment. . . . An injury is ‘accidental’ within the meaning of the [WCA] when it occurs unexpectedly and without affirmative act or design by the employee.”) (internal citations omitted) (emphasis in original).
[24] See Feldman, supra note 7.
[25] This would further help to resolve issues that could arise on whether the employer was aware of the violation or not.
[26] Lannom, 158 Ill. 2d at 537.
[27] Kotecki, 146 Ill. 2d at 161-62.