The COVID-19 pandemic has brought on new waves of rules and regulations employers must adhere to. Employers must take reasonable steps to protect employees from catching or spreading coronavirus in the workplace. It could be difficult to receive worker’s compensation due to contracting the virus. However, you still may be able to sue your employer if they did not take the correct precautions to protect their employees.
Would I Be Eligible For Worker’s Comp If I Got COVID-19 On the Job?
Worker’s compensation is a system that is meant to benefit the employer and employee at the same time. On one hand, the employee does not have to prove that their illness or injury was not due to the employer being at fault. On the other hand, however, worker’s compensation is an ‘exclusive remedy,’ which means that an employee cannot sue their employer once they’ve received their worker’s compensation. Proving that a person got COVID-19 on the job could be difficult, and these claims typically get denied.
Of course, however, there are some exceptions to the exclusivity rule. The exceptions are:
-If the employer does not have worker’s compensation
-If a third party caused the illness or injury
-If the illness was caused by the employer’s negligence or wrongdoing
Since the start of 2021, California has enacted new rules and regulations for employers to abide by when protecting their employees from the coronavirus. If the employer fails to do so, they may be sued.
How Can I Sue My Employer When I Contract COVID-19 On the Job?
If your employer has failed to take adequate steps to ensure that members of the workplace could not contract or spread the virus, they could be sued. Many claims have been brought against employers for them:
-Failing to provide proper PPE such as masks or gloves
-Failing to sanitize the workplace after an employee tests positive
-Failing to take reasonable steps to change work schedule and environment to allow for social distancing.
It may be difficult to sue the employer depending on the circumstances in which the employer had acted. California law requires the employer to act with the intent to harm the employees. The employee would need to prove that the employer had been acting with the ‘intentional wrong.’ It’s also important to note that it’s not clear how exactly judges will react based on COVID-19 claims, especially considering it’s such a deadly disease.
In the state of California, Governor Newsom had signed an executive order making COVID-19 a workplace-related illness, allowing for employees to gain worker’s compensation due to the coronavirus pandemic. However, there are some requirements the employee must meet in order to receive worker’s compensation benefits. If an employer has specific benefits in place for workplace illnesses, those benefits must be exhausted before worker’s compensation benefits could be received.
What Are My Other Legal Options?
If you believe that your employer’s response to the COVID-19 pandemic has been poor, or if they have not been taking enough action to prevent anyone from getting the virus, they could try to file a complaint with OSHA. Many complaints have been brought to the OSHA, believing their response to the coronavirus pandemic has been inadequate, having a complaint filed with the OSHA could be a solid lead to a lawsuit. It’s important to remember an employer could not discipline, fire, or retaliate against anyone who files an OSHA complaint.
Employees retain the right to refuse to work under hazardous conditions if they believe they are in imminent danger. If an employee is fired for taking this step, that could be grounds for a wrongful termination claim. California also has ‘wrongful constructive termination’ claims. In other words, an employee may have the grounds to sue if they were essentially forced to quit their position at their job due to an unsafe work environment.
In some instances, an attorney could be able to use nuisance laws to sue an employer for endangering the public by failing to take steps such as sanitizing areas, social distancing, and providing employees with masks to stop the spread of COVID-19. This could be grounds to sue your employer over COVID-19 issues.
Contact Pride Legal
If you or a loved one has been affected by COVID-19 in the workplace, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.