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Lawyers say that it will be extremely difficult for customers and employees to hold companies responsible if they catch the coronavirus at grocery stores, restaurants, or other essential businesses.
The coronavirus is relatively easy to catch, can be spread by people without symptoms, and is not immediately symptomatic — making it difficult to make definitive claims on how people contracted COVID-19.
"The biggest hurdle infected employees will face if they seek compensation from an employer will be proving where they contracted the virus," said attorney James Biscone said. "Was it at work? On the way home? On the subway or bus?"
Bill Marler has spent years making companies pay millions of dollars for the illnesses and deaths caused by food poisoning.
Marler made his name tracing food poisoning outbreaks back to chains and suppliers, holding food industry giants responsible for customers' suffering. The attorney, who specializes in foodborne illnesses like E. coli and salmonella, has won more than $600 million for clients, taking on fast-food chains like Jack in the Box and Jimmy John's.
But, Marler says, doing the same in the coronavirus era is a different story.
Hundreds of workers in the food supply chain have been diagnosed with COVID-19, including deaths of employees from slaughterhouses to grocery stores. Some workers claim they have not received sufficient protection on the job, and that their bosses have pushed them to work in dangerous situations.
But, Marler says, the difficulty in tracing exactly how people caught the virus makes it nearly impossible for workers and customers to hold companies responsible.
It takes up to 14 days for COVID-19 to become symptomatic, making it extremely difficult to pinpoint how people catch the coronavirus and assign blame to a specific store, restaurant, or workplace, Marler said. Because the virus is relatively easy to catch and can be spread by people without symptoms, it is almost impossible to make definitive claims about how someone caught the coronavirus.
James Biscone, an attorney at Johnson & Biscone, P.A., said that while workers could file for compensation if they prove they caught the virus at work, few will be able to say definitively that they were solely exposed on the job.
"The biggest hurdle infected employees will face if they seek compensation from an employer will be proving where they contracted the virus," Biscone said. "Was it at work? On the way home? On the subway or bus? From a family member or neighbor?"
Companies still need to put in the work to keep employees safe
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Lawyers say that the cases with the best chances of success are those in which workers can prove that the company was negligent, failing to meet local or federal safety standards.
"Employers who knowingly allow exposed or infected workers to come into work, for example, could create such an increased risk that it overcomes the causation issues plaintiffs would otherwise face," said Aaron Goldstein, a partner at Dorsey & Whitney.
Despite questions around if the cases are successful, lawyers predict a significant uptick in worker health and safety cases in the coming months.
Fast-food workers and grocery store employees have protested their lack of gloves and masks at work, with many employers backtracking on previous policies that prevented workers from wearing personal protective equipment.
Walmart is facing a wrongful death lawsuit from the family of a 51-year-old employee who died of COVID-19, which claims that the company "failed to address and otherwise ignored" employees who said they were experiencing symptoms related to the illness.
With the number of COVID-19 cases rising every day, claims from workers who may have been exposed to the coronavirus on the job will likely end up being hashed out in court.
Goldstein says that companies that employ healthcare workers are likely to be significantly impacted by upcoming cases, especially if they fail to take steps such as providing masks to keep workers safe. Companies that fail to comply with CDC guidelines and stay at home orders are also more likely to be held responsible if workers get sick.
Still, holding companies liable will be an uphill battle for workers and their families.
"Employers and their insurance companies fight injury claims hard, no matter how well the employee performed before their injury," Biscone said.
The fear of the impact of the coronavirus on a business's reputation may ultimately be more powerful than a fear of lawsuits.
"Even if a consumer won't be able to easily make a claim against you, you still don't want to potentially be the source of illnesses for your customers," Marler said. A "restaurant is not going to want to be known as, 'Oh, those guys had 10 COVID [positive] people working there and spewing COVID around."
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