Does a business have potential liability if someone contracts coronavirus (COVID-19) on business premises? Maybe, but, in most cases, it’s unlikely.
In North Carolina, there are three primary sources of potential liability for injury to employees: (1) the Occupational Safety and Health Act of 1970 (the “OSH Act”); (2) the North Carolina Workers’ Compensation Act; and (3) North Carolina common law.
1. The OSH Act
The OSH Act is administered by the Occupational Safety and Health Administration (OSHA). Most private sector employers and their workers are required to comply with the OSH Act. Under the “General Duty Clause,” employers are required to “furnish . . . employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Employers can be cited for violations of the General Duty Clause if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard.
In order to help employers avoid liability, OSHA recently published “Guidance on Preparing Workplaces for COVID-19,” which includes steps employers can take to reduce workers’ exposure to COVID-19. In addition, the Centers for Disease Control and Prevention (CDC) has published “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19),” which is intended to help prevent workplace exposures to COVID-19, in non-healthcare settings. (The CDC has published separate guidance for healthcare settings.)
2. The North Carolina Workers’ Compensation Act
In order to establish “compensability” under the North Carolina Workers’ Compensation Act, an employee will likely need to prove that COVID-19 is an “occupational disease.” For a disease to be occupational under N.C. Gen. Stat. § 97-53(13), an employee must prove: (1) that employment placed the employee at an increased risk of contracting the disease compared to members of the general public not so employed; and (2) the job was a significant causal factor in, or significantly contributed to, the development of the occupational disease. See Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93-94, 301 S.E.2d 359, 365 (1983); Futrell v. Resinall Corp., 151 N.C. App. 456, 460, 566 S.E.2d 181, 184 (2002).
Accordingly, an employee must prove that his job placed him at an increased risk of contracting COVID-19. In addition, the employee must prove a causal connection between the disease and his work, which will likely be challenging during a pandemic, although employees who work in healthcare with COVID-19 patients may find that they can be compensated though the Workers’ Compensation Act.
3. North Carolina Common Law
The North Carolina Supreme Court has held that a person is liable if he negligently exposes another to a contagious or infectious disease. See Crowell v. Crowell, 180 N.C. 516, 519, 105 S.E. 206, 208 (1920).
This is a negligence standard. In order to avoid liability, a person must act reasonably and exercise ordinary care to protect others from harm. Employers should follow CDC and OSHA guidance, and take other appropriate precautions to minimize the spread of COVID-19 (such as requiring sick workers to stay home).