To say Illinois has been significantly affected by the COVID-19 pandemic would be a dramatic understatement. According to the CDC, as of February 11, 2021, Illinois ranks fourth among all states for the number of COVID-19 cases and seventh for the number of deaths caused by COVID-19. Given the number of cases and deaths in the state, Illinois businesses should consider whether there will be a corresponding wave of lawsuits related to the pandemic and, if so, whether the businesses are prepared to defend against such lawsuits. As of this writing, an estimated 365 lawsuits related to COVID-19 have been filed in Illinois. The lawsuits raise a variety of legal theories, including insurance coverage, employment law, commercial disputes, and torts, among others.
Potential Tort Claims
As to tort claims, businesses may face negligence lawsuits premised on theories such as negligently exposing others to COVID-19, failing to take proper measures to protect others from exposure to COVID-19, failing to implement proper screening protocols related to COVID-19, failing to adequately warn of the potential for exposure to COVID-19, or violating a public health statute or ordinance. As a potential preview of future lawsuits, in April 2020, a decedent’s estate filed suit against his former employer in Cook County, alleging that the employer failed to follow CDC and Department of Labor guidelines regarding COVID-19 and maintaining a safe workplace. Similarly, on November 20, 2020, a decedent’ daughter filed suit against a nursing home located in Bloomington, Illinois, alleging that the nursing home failed to provide proper care to her mother, who died of complications from COVID-19. In the lawsuit, the plaintiff claims that the nursing home failed to implement appropriate infection control and prevention measures related to the virus.
In another tort action, five McDonald’s employees and four of their relatives filed suit against the company in Cook County, alleging the company failed to adopt proper safety protocols to protect against COVID-19. Interestingly, the plaintiffs in that case avoided dismissal under the Illinois Workers’ Compensation Act’s exclusivity provision, which generally prohibits employees from filing civil suits against employers for employment-related injuries, by alleging that McDonald’s violated public nuisance laws. The judge, in granting the plaintiffs’ request for a preliminary injunction, ruled that a failure to have employees social distance and wear masks could spread COVID-19, which might constitute a public nuisance.
Another type of claim already filed against Illinois businesses related to COVID-19 arises from what is sometimes referred to as “secondary” or “take-home” exposure to the virus. This theory of liability emerged from asbestos litigation. Specifically, a common claim made in asbestos litigation is that a plaintiff or decedent was exposed to asbestos fibers through contact with the work clothes of a relative, who was directly exposed to those asbestos fibers through his or her employment. See, e.g., Simpkins v. CSX Transp., Inc., 2012 IL 110662. In the context of COVID-19, two lawsuits based on this theory already have been filed in Illinois. In one case, the plaintiff alleged that her mother died of COVID-19 after her father contracted the virus through his employment at a meat processing plant. In the other case, the plaintiff alleged that she contracted COVID-19 from her husband, who she alleged contracted the virus through his employment with an electrical components manufacturer.
Potential Statutory-Based Claims
A related claim may involve negligence based upon a violation of a statute or ordinance. Under Illinois law, a plaintiff can assert such a claim if the statute or ordinance violated was designed to provide a standard of conduct for the safety of a particular person or class of persons and the injury suffered was of the type the statute or ordinance intended to protect against. See, Ney v. Yellow Cab Co., 2 Ill.2d 74 (Ill. 1954); Bitner v. Lester B. Knight & Associates, Inc., 16 Ill. App. 3d 857 (3rd Dist. 1974). A potential claim under this theory might be that the Illinois Emergency Management Agency Act qualifies as such a statute and, therefore, violations of it, or any executive orders or regulations issued pursuant to the Act, constitute negligence. According to the Act, one of its purposes is to “preserve the lives and property of the people of [Illinois] and protect the public…health.” 20 ILCS 3305/2. The Act further indicates that to fulfill this purpose, “it is found and declared to be necessary…[t]o confer upon the Governor…the powers provided herein”, which includes the power to issue executive orders. 20 ILCS 3305/2(a)(2). Accordingly, plaintiffs may argue that the Governor’s executive orders issued in response to the pandemic and related Illinois Department of Health regulations constitute laws designed to protect the safety of Illinois residents against COVID-19 and that violations of such orders or regulations amount to negligence.
Potential Workers’ Compensation and Employee Claims
Illinois businesses also should anticipate workers’ compensation claims related to COVID-19. Perhaps in anticipation of an increase in occupational exposure to COVID-19, on June 5, 2020, Illinois enacted House Bill 2455, which creates a rebuttable presumption that where a “front-line worker” is exposed to and contracts COVID-19, the illness arises out of and in the course of employment and is casually related to the hazards or exposures of employment. Front-line workers include individuals that are employed by essential businesses, as defined by executive order 2020-10, so long as the employees are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. Employers can rebut this presumption by establishing: 1) the employee was working from home and/or on leave for a period of 14 or more consecutive days immediately prior to their illness; or 2) the employer was engaging in and applying to the fullest extent possible industry-specific workplace sanitation, social distancing, and health and safety practices based upon updated guidelines from the CDC or Illinois Department of Public Health, or was using a combination of various administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 days before the employee became ill.
As with tort claims, employers also should expect and be proactive to avoid employment law claims related to COVID-19. Already, one plaintiff has filed an employment law claim in Illinois related to the pandemic. In Watts v. Estes Express, No. 1:20-cv-07046 (N.D. Ill. 2020), the plaintiff alleges that he was terminated for refusing to continue working after he learned that two colleagues who had recently been on-site were infected with COVID-19. According to the plaintiff, his employer instructed him to continue working despite the plaintiff’s purported safety concerns. Given the number of COVID-19 diagnoses in Illinois, and with the Governor continuing to ease restrictions on business operations, employers may very well face similar situations in the immediate future. Thus, employers should be familiar with laws related to refusal to work, including OSHA’s right to refuse standard and the National Labor Relations Act’s protection of “Protected Concerted Activities.”
Potential Vaccine-Related Liability and Claims
In addition to exposure-related claims, businesses also may face claims related to COVID-19 vaccines. While the EEOC recently indicated that mandatory COVID-19 vaccines do not constitute medical examinations under the Americans With Disabilities Act (“ADA”), employers should understand their legal obligations if employees seek an exemption to a mandatory vaccination policy based upon a disability or a religious belief. If the request is based on a disability, the employer should be prepared to engage in the “interactive process” with the employee and, possibly, show that the policy is job-related, that the policy is a business necessity, and that the risk posed by not requiring the vaccine cannot be eliminated or reduced by a reasonable accommodation. If the request is based on a religious belief, the employer should understand what is required under Title VII of the Civil Rights Act. Generally, if an employee requests a reasonable accommodation based on a sincerely held religious belief, the employer must provide the accommodation unless doing so would pose an undue hardship.
Similarly, if employers implement mandatory vaccination programs, they will need to consider where the vaccines will be administered. If the vaccines are administered by the employer, on the employer’s property, or by a third-party pursuant to a contract with the employer, the pre-screening questions asked before the vaccine is administered likely constitute a disability-related inquiry as defined by the ADA. Additionally, the pre-screening questions may implicate the Genetic Information Nondiscrimination Act, which prohibits employers from asking employees about the medical history of their family members. 29 C.F.R. § 1635.3(c). Most likely, the safest option for employers is to have the vaccines administered offsite, by an unaffiliated entity, and to merely ask for proof of vaccination from employees.
For employers that plan to encourage, rather than require, COVID-19 vaccines, employers should be familiar with the legal requirements governing wellness program incentives. In January 2021, the EEOC forwarded to the Federal Register Notices of Proposed Rulemakings on wellness programs. Under the proposed rules, employers would be allowed to offer no more than de minimis incentives to employees to encourage participation in wellness programs, with the exception of health-contingent wellness programs, which, under HIPAA, allows an employer to offer up to 30 percent of the total cost of health insurance as an incentive.
Another potential legal issue related to COVID-19 vaccines relates to whether businesses have a duty to require their employees to be vaccinated. For example, if a customer or co-worker contracts COVID-19 from a business’ unvaccinated employee, can the business be held liable? In other words, do businesses owe a duty of care to protect employees and customers from COVID-19 by requiring employees to be vaccinated? While the answer is unsettled at this point, businesses should be mindful of OHSA’s General Duty Clause, which requires employers to furnish employees a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm.
By contrast, if businesses require employees to be vaccinated, they should consider whether they could be liable if an employee suffers an adverse reaction to the vaccine. This situation may implicate workers’ compensation coverage. The Illinois Workers’ Compensation Act contains a provision governing employer liability for injuries arising from vaccines. See, 820 ILCS 305/11. It is unclear, however, whether this provision applies to COVID-19 vaccines, but employers certainly should be aware of it and the fact that it could create liability under the Act for employee injuries arising from the vaccine.
Further adding to the uncertainty over potential vaccine liability is the extent to which the Public Readiness and Emergency Preparedness Act (“Prep Act”) may provide immunity from liability for vaccine-related injuries. The Prep Act limits legal liability for losses arising from the administration of medical countermeasures, such as vaccines. Generally, to qualify for immunity under the Act, an entity must show that it is a “covered person,” facing a claim that qualifies as a “loss,” the loss has a “causal relationship” with the administration or use of a covered countermeasure, and the medical product at issue must qualify as a “covered countermeasure.” Prior HHS Secretary Alex Azar declared COVID-19 to be a public health emergency warranting liability protections under the Act. Secretary Azar also indicated that immunity under the Act should extent to liability claims relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury at a vaccine site. Thus, if faced with a claim arising from a COVID-19 vaccine, employers should consider asserting a defense based on immunity under the Prep Act.
Ultimately, the legal landscape surrounding COVID-19 is likely going to continue evolving. While there are many legal issues related to the pandemic for which there are currently no clear answers, employers and businesses should, to the extent possible, stay apprised of developments and guidance by monitoring for new announcements from government agencies such as the EEOC, CDC, OSHA, Department of Labor, and similar state organizations. Moreover, given the rapidly changing legal landscape and numerous bases for potential liability, when determining whether to adopt policies or programs related to the pandemic, employers and businesses should strongly consider consulting legal counsel.