By Joe Gagnon, Partner, Fisher Phillips, Healthcare Industry Team
While an employee injury claim arising from occupational exposure to harmful substances or organisms is nothing new, the current novel coronavirus pandemic represents an additional type of occupational exposure claim for employers to confront. The virus can, of course, spread at any place of employment. Indeed, industries outside of healthcare have been the scene of much-publicized cases of workplace infection of COVID-19. That said, healthcare facilities – and in particular those that provide treatment to COVID-19 patients – represent a unique type of workplace where the potential for spread is high. For this reason, healthcare providers in Texas that have opted out of the state workers’ compensation system must be mindful of the litigation risk posed by workplace exposure to COVID-19.
Workers’ comp vs. nonsubscription: A critical distinction
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Many healthcare providers in Texas are known as “nonsubscribers,” meaning they have decided to forego the traditional workers’ compensation system in favor of implementing self-funded or third-party insured occupational injury benefit plans for covered workplace injuries sustained by an employee. Under the traditional workers’ compensation system, employees are prohibited by law from suing their employer for workplace injuries, except in very limited circumstances. Nonsubscriber employers, on the other hand, may be sued by an injured employee for negligence. Accordingly, nonsubscriber healthcare facilities may be sued by an employee who claims he or she was infected with COVID-19 at work.
To prove negligence, an injured employee who sues a nonsubscriber employer must prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Texas law mandates that a judge, jury, or arbitrator may not consider the employee’s own negligence in causing the injury. For example, an employee may not be denied recovery for neglecting to properly follow established safety protocols (such as wearing a mask or properly distancing).
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When duty calls: What legal obligation does a nonsubscriber healthcare provider owe to its employees?
Employers have a legal duty to take reasonable steps to provide a safe workplace. The key word regarding the employer’s duty is “reasonable.” At law, employers are not guarantors of workplace safety. The only legal obligation any employer has is to act reasonably. This includes providing sufficient warnings, training, supervision, and remediation with respect to potentially harmful work conditions. Exposure to COVID-19 can be considered a harmful work condition. Processes for arrival at work, while performing work duties, and while interacting with patients and co-workers are hallmarks of a reasonably prudent healthcare provider. Moreover, temperature checks, distancing requirements, hygiene practices and hygiene etiquette, PPE usage, isolation processes, permissible notification procedures, and adherence to CDC and other public safety guidelines will not only promote safety in a real sense, but in the context of litigation will constitute compelling evidence that the healthcare provider acted reasonably.
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A breach or not a breach? That is the question.
A hospital in the midst of a pandemic is the last place where one would expect to see lax safety measures. That said, even the best safety plans are only as good as the adherence to them. When it comes to COVID-19, whether at businesses, schools, summer camps, grocery stores, political rallies, and sporting events, far too often we have seen that it only takes one person failing to follow the plan to become a vector for further spread of the virus. Flaws in a safety plan – for example, that are contrary to CDC guidelines or that provide limited instructions regarding hand washing or mask wearing – can and will be argued by an infected employee as evidence of the provider’s breach of its duty to provide a safe workplace. Having a solid safety plan is not enough, though. The failure to reasonably oversee compliance with the plan can also be framed as evidencing breach of the duty. If, for example, management knows or should know that an employee is working despite having a fever or other symptoms consistent with COVID-19, this can constitute evidence of the employer’s breach.
Connecting the dots: Establishing damages and causation
Because COVID-19 was unknown to us less than a year ago, our understanding of this novel virus is evolving rapidly. It is currently believed that most people who contract COVID-19 will not fall seriously ill. In fact, many may not exhibit symptoms at all, or even know they are infected. Most lawsuits against nonsubscriber employers involve claims of significant injury, whether real or perceived. In the context of litigation against nonsubscriber healthcare providers, this means that in the overwhelming number of cases of workplace exposure the likelihood of a negligence lawsuit is extremely low. Any treatment for mild symptoms requiring medical treatment or lost time from work may be handled through the provider’s self-funded occupational injury benefit plan, assuming exposure to COVID-19 falls within the plan’s definition of a covered claim. If covered, the typical claim for benefits would be for wage replacement while the employee is off work and quarantined, and possibly for minor medical treatment.
If, on the other hand, an employee becomes seriously ill and then files suit against the employer-provider alleging negligence, a key issue with respect to damages will be causation. That is, even though an employee may be able to show that a provider’s safety plan was flawed or that it was implemented in a flawed way, the employee also has the burden of proof to establish that the flaw resulted in the employee’s infection. Contact tracing will be a critical component of the discovery process once a suit is filed. The employee’s contact with potentially infected people both during and after work will be heavily scrutinized. For example, if an employee attended a large indoor gathering while off duty and then exhibited COVID-19 symptoms a few days later, establishing the link between the provider’s breach and causation of illness will be a more difficult burden for the employee to meet.
As with any occupational exposure, there is a risk of litigation against nonsubscriber healthcare providers when an employee contracts COVID-19 at the workplace. That risk appears to be relatively low, but it is a risk nonetheless. Likewise, as is the case with any potential risk of harm, the adoption of and adherence to reasonable safety protocols will significantly reduce the risk of coronavirus spread at work and, accordingly, the likelihood of litigation.