Can I Sue My Employer If I Get COVID-19 at Work?

Whether you’re concerned about finances or just sick of Zoom meetings, you may be more than ready to return to work. If the only thing holding you back from returning to your workplace is fear of exposure to the novel coronavirus, you’re likely asking yourself, “Can I sue my employer if I get COVID-19 at work?”

Can I Sue My Employer If I Contract COVID-19 on the Job?

So far the answer is mostly no. With such a long incubation period and the possibility that the virus may be caught anywhere, it’ll be tough to prove you contracted COVID-19 at your workplace, according to Amy E. Feldman, an employment lawyer at The Judge Group, Inc.

Even if you could prove that you were infected at work and that your employer didn’t take reasonable safety precautions or failed to abide by federal and state mandates, you would still have trouble winning a case.

“There are major legal hurdles to suing an employer for getting sick because of your job,” Feldman says. “Many employees don’t realize that workers’ compensation laws make it nearly impossible to sue your employer.”

Workers’ Compensation Laws Complicate Lawsuits

Almost all on-the-job injuries are covered by workers’ compensation, which is basically a legally mandated insurance system your employer has to carry.

Workers’ compensation is a no-fault system where “no matter who is at fault for your workplace injury—whether it’s because your boss let the work area remain in an unsafe condition or if it was because you were goofing off and not paying attention—you will be paid a certain percent of your salary” when you collect.

The good news for employees is that whether it was your fault or your employer’s fault, you’re almost automatically entitled to compensation for a workplace injury—assuming you can prove that your injury or illness took place on the job. The bad news is that by filing a claim for workers’ comp insurance, you can’t sue your boss for additional money, like pain and suffering damages.

With the cloud of liability hanging over companies, some states have enacted laws intended to shield companies from employee lawsuits relating to contracting COVID-19 in the workplace. The majority of those laws apply only to lawsuits—they don’t affect whether or not an employee can file a workers’ compensation claim.

Can I Sue My Employer If I Work in a Hazardous Workplace?

Even those who work in more hazardous settings will have trouble suing their employers. People who work in health care, at grocery stores, at schools, or at processing plants have a higher risk of coming into contact with COVID-19. This might make it easier to prove that you were exposed on the job, which means they’ll be able to file a claim for workers’ compensation.

In some states, lawmakers have made it easier for people who work in these high-risk settings to receive workers’ compensation without even having to prove that they caught COVID-19 at work. But this still doesn’t make it any easier to file a lawsuit, because by filing a workers’ comp claim, you’re giving up your legal right to sue your employer.

Can I Sue My Employer If I Can Prove Intentional Misconduct?

In very rare cases where an employer’s misconduct was intentional, you could have cause to sue. Following shifting federal, state, and local laws during the pandemic has been difficult for employers. But in some cases, employees believe that their workplaces weren’t just struggling to keep up with new regulations but were intentionally ignoring them.

“There are limited situations in which you retain the ability to sue your boss, but those are only cases of your boss’s intentional misconduct, not simple negligence,” Feldman says. “Even an employer that doesn’t keep current with safety standards is probably not intentionally trying to hurt its workers, so it’s unlikely that even if you could prove that you were infected at work, you’d be able to file a lawsuit.”

In other words, proving that an employer intended to cause harm is very difficult for even the most seasoned of employment lawyers.

Where Have COVID-19 Employment Lawsuits Been Filed?

Employees who want to sue their workplaces over COVID-19 exposure face an uphill battle. Nevertheless, COVID-19 employment litigation is taking place across the country. “There was a wave of employee lawsuits filed early in the pandemic as the virus spread through workplaces that were unprepared for the risks, but many of those were or will be dismissed because of the workers’ comp laws,” says Feldman.

A lawsuit from a family of an Illinois worker who died from COVID-19 alleges that adequate safety measures were not implemented at Walmart to protect against the virus’s spread. And interestingly, there’s a first-of-its-kind lawsuit against an employer for a worker’s spouse getting sick with COVID-19.

One more likely trend in COVID-19 lawsuits, says Feldman, might be from “employees who are not able to take the vaccine who come down with COVID-19 because others in the workplace refused to take it or an employer who did not require it [even though they] knew of the risks to the employee.”

Interestingly, smaller companies with 50 or fewer employees have been sued more frequently by their employees. It’s not clear why that is, says Feldman, but it could be that smaller employers don’t have the resources to implement the practices that make a difference in transmission levels or are not as familiar with laws that require reasonable accommodation to employees whose health conditions make it difficult for them to be in the workplace.

So, as with everything related to the pandemic, the legal outcome of pursuing a lawsuit if you contract the novel coronavirus at work is uncertain. If you believe you contracted COVID-19 on the job, your best bet is to speak to a lawyer who specializes in employment law.

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Although the most likely answer to the question of “Can I sue my employer if I get COVID-19 at work” is “no,” the fact that you’re asking it might be a sign that it’s time to move on. Upload your resume to Monster for free to let top employers know you’re looking for a job that’s a better fit for your skills, goals, and values.

This article is not intended as a substitute for professional legal advice. Always seek the professional advice of an attorney regarding any legal questions you may have.