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Can Employees Sue Their Employer for Contracting the Coronavirus?

March 30, 2020

By: Drew Sorrell & Morey Raiskin

Chapter 440 of Florida’s statutes sets out Florida’s workers' compensation laws. In very general terms, a workplace injury is covered by workers' compensation. These laws were a political compromise between employer and employee whereby the employer could no longer be sued by an employee for negligence with its unlimited damage potential, in exchange for an employer having a form of strict liability to an employee and being required to cover hospital bills, medical expenses, reduced wages, and the like. But what about coronavirus? If an employee contracts coronavirus while carrying out her/his employment, is it covered?

For illustration purposes, let’s consider a hypothetical restaurant delivery driver named Janet. Janet continues to work delivering food for the restaurant, collecting wages, and physically collecting cash tips from patrons. Janet is stricken with coronavirus and becomes very ill. Also assume that 12 of the 15 workers at the restaurant—including all five of the delivery drivers—become ill with the coronavirus. Finally, for our illustration, assume it is later shown that due to social distancing, only 1 in 100 citizens in Central Florida contracted the disease.

Candidly, there is currently no definitive answer as to whether Janet is covered by the restaurant's workers’ compensation policy under these specific coronavirus circumstances. This particular question is novel, like the coronavirus.

What follows are some educated guesses. Traditionally, for occupational diseases to be covered by Florida’s Workers' Compensation Act:

  1. the disease must be actually caused by employment conditions that are characteristic of, and peculiar to, a particular occupation;
  2. the disease must be actually contracted during employment in the particular occupation;
  3. the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be substantially higher in the occupation than in usual occupations; and
  4. if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public.

As you can see by reading “the test”, an argument can be made that the employment conditions of being a delivery driver, while others are home social distancing, are “characteristic of and peculiar to” being a delivery driver. There may be a challenge proving whether Janet contracted the coronavirus at work, but by comparison to the general public, it is arguably provable.

As to the third prong, Janet certainly has a higher chance of contracting the disease during these times of social distancing as compared to say, a lawyer who is working at home without physical interaction with others.

Finally, coronavirus is arguably a “disease of life” but in this hypothetical scenario, it appears that the incidence is substantially higher. Although there is no case law determining that this conclusion is “right” and that Janet is clearly covered, there is a reasonable argument that she is.

Importantly, even if Janet loses her case and her bout with coronavirus is not ruled to be “an occupational disease”, if she has a related pre-existing condition that is aggravated by coronavirus, she still may have a workers' compensation case. For instance, Janet has the common disease of asthma that is aggravated.

Let’s also assume that the restauranteur, being the aggressive type, defends and argues that Janet’s coronavirus is not covered by workers' compensation at all. The law provides a solution for that, too, which is that Janet can now sue in tort. Assuming she can prove causation (which would not necessarily be easy), she will be able to receive damages including out-of-pocket expenses, loss of wages, pain and suffering, and perhaps other theories of damages, none of which would be limited by workers’ compensation.

Finally, let’s assume that the actions of the restaurant were found to be grossly negligent or willful. For example, the restaurant did not provide even basic training as to how to help reduce the risk, did not provide soap, or the time and training about how to use it. Perhaps the “back of the house” was crammed with workers, none of whom were screened for sickness prior to work. Janet may have an argument that even if workers' compensation otherwise would apply to limit her damages, it does not in this case because her employer's actions were grossly negligent or willful which are exceptions to the normal workers compensation restrictions, i.e. punitive damages become available along with their damage multipliers.

Thus, while it is not clear, it is terribly important that just because a restaurant or other entity can operate—it must do so safely, or face potentially significant claims.

If you have questions regarding employment or tort (negligence) issues or other questions regarding your business in the context of the coronavirus, please contact one of the lawyers at Lowndes.

For up-to-date news please follow our Coronavirus (COVID-19) Response Team page.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Drew

Drew Sorrell is a seasoned business lawyer with particular expertise in technology, cybersecurity and privacy issues. With an MBA in marketing and finance, he approaches clients’ legal issues with both a practical business bent and a self-described geeky love of technology.

Drew enjoys working with CLO’s, CIO’s, CTO’s and technology owners at businesses of all sizes in every phase of their legal needs. He assists them on the front end, drafting and negotiating software licenses, Internet service provider agreements, data privacy/breach policies and procedures, and employment/services agreements as well as the indemnity and insurance coverage related to those agreements. He advises clients on the GDPR and state-specific regulations, penetration testing and security audits. He also has years of experience handling matters when things go wrong, including data breaches, privacy issues and other technology or software problems.

A founding member of the Sedona Conference Group 11 (Privacy/Data Security), Drew is frequently asked to speak and write on legal and ethical issues arising from technology, including unfair and deceptive trade practices, data breach, privacy, data governance, and technology contract drafting. He is chair of the firm’s multi-disciplinary Data Governance Group as well as the past chair of the Orange County Bar Association’s Intellectual Property, Business Law and Technology Committees.

Outside the technology arena, Drew has substantial expertise in both contracts and commercial litigation. In addition, he has experience assisting clients with government contracting. Drew began his legal career as a judicial clerk to Senior United States District Judge John H. Moore II, in Jacksonville, Florida, and then practiced with an AmLaw top 10 firm in Manhattan. After a stint as an assistant county attorney responsible for day-to-day legal advice and litigating civil issues for the county, Drew returned to Lowndes. Drew is admitted to practice in Florida, New York and the District of Columbia.

Born in Florida, Drew roots for his adopted football team—the FSU Seminoles (because neither Rollins nor George Washington has a football team). He is a proud father of two sons who play basketball and soccer, make great grades and generally keep him on his toes.

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


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