The wave of law suits against employers claiming the employee contracted the COVID-19 virus at work have begun in several states including claims against Walmart, Tyson, certain nursing homes, and other businesses. Some lawsuits are claiming that the employers were grossly negligent resulting in the employees getting very sick or dying of COVID-19.
The New Hampshire Workers’ Compensation Statute provides liability protection for employers from employee’s personal injury claims if it is work related and that should include claims that they contracted COVID-19 at the work place. The Workers’ Compensation Statute has limitations on the recovery an employee can get from the employer for work-related injuries even if they die, including, among other remedies, payment of medical bills and lost wages. However, if the employee can prove she got COVID-19 at work due to work-related activities such as coming into contact with customers while conducting the employer’s business, she does not have to prove the employer is at fault to be able to make a worker compensation claim. The claim would be brought at the New Hampshire Department of Labor and cannot be brought in court as a jury trial. The employee’s spouse also cannot bring a separate claim against the employer because of the employee getting COVID-19 at work. The statute also precludes an employee from suing their employer’s officers, directors, agents, or servants including employees who work for the employer except for intentional torts. However that employee may have a negligence claim against a person or entity that is not part of the employer such as a vendor or a customer and those claims can be brought through a jury trial requesting full damages; albeit the employee would need to show that she contracted COVID-19 due to that person’s or entity’s negligence.
This limitation of liability for such COVID-19 work-related claims against the employers is helpful for New Hampshire employers in that their business general liability insurance policies likely have a virus and/or bacteria exclusion and the general liability insurance company will neither pay for claims related to viruses nor provide a defense for such a claim against the business. The employer’s worker compensation insurance however should provide coverage for the claim asserting the employee contracted COVID-19 due to her work activities.
Congress is currently in the middle of negotiations regarding the new federal stimulus package that includes discussions as to whether or not there should be liability protection for businesses prohibiting law suits for COVID-19 claims other than if the business was grossly negligent. If that becomes law, it would provide further protections for businesses related to COVID-19 claims.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].