Tis the season…when it seems like all our co-workers have the flu, colds, and coughs. While this is nothing new, and we all have learned to live with it, the individual and national costs of sick employees are staggering. The Centers for Disease Control and Prevention reported that the flu alone killed up to 80,000 people in 2017. Though, perhaps nothing showed us the impact of illness on the workplace more than COVID, and while the impact seen with COVID will hopefully be rare, the basic issues around workplace illness are not.

Regarding employee costs of illness, in addition to feeling sick, most workplace health benefits will usually require the employee to pay out of pocket for some medical expenses in treating themselves and family members who may be affected. Indirect costs related to illness may also include childcare services, transportation services, and loss of income due to work absence. As an employee, you may be wondering if a co-worker who goes to work while sick and gets you sick should be responsible for paying your medical costs or those of treating your family. If your child gets sick and cannot attend school, is your co-worker responsible for paying the babysitter so you can go to work?

For employers, the cost of having sick employees is also great. According to the U.S. Bureau of Labor and Statistics, looking at pre-COVID numbers, U.S. employers lost $575 billion a year in lost productivity due to illness-related worker health. The employer may also face employee shortages and related customer issues, loss of productivity, internal business conflict, and possibly associated turnover. If your employee gets sick from a co-worker, will they come after you? For example, an employee in Florida sued their employer after it was discovered that although the employer had knowledge of a co-worker’s positive test for tuberculosis, the employer took no steps to protect the other employees from exposure. Quezada v Circle K Stores, Inc., 18 Fla. L. Weekly Fed. D 795 (M.D. Fla. 2005). The Quezada suit was ultimately dismissed because Florida did not recognize a claim for negligent transmission of a contagious or infectious disease.

As an employer, you have a general duty to provide employees with a safe work environment, but what about the employee’s family? What if an employee happens to live with an immune-compromised family member who passes away because of the illness acquired at work? While this example may seem extreme, it was the basis of several lawsuits seeking to hold employers liable for failing to provide reasonable measures to prevent COVID transmission between employees. See’s Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66 (2021). In 2020, an employee who contracted COVID passed the infection to her spouse who ultimately succumbed to the illness. The employee sued the employer claiming that the employer knew or should have known that it failed to implement appropriate safety measures to mitigate employee exposure to the coronavirus. The employer unsuccessfully attempted to defend the claim stating it was precluded by the derivative injury doctrine that would have made workers’ compensation the exclusive remedy for the employee. The Supreme Court declined to review this decision. A similar case, Kuciemba v. Victory Woodworks, 2021 U.S. Dist. LEXIS 88997; 2022 U.S. App. LEXIS 10786 9th Circuit Court of Appeals, saw a couple contract COVID and sue the employer. The employer successfully defended this claim using the exclusive remedy doctrine, but other specific questions were certified to the Supreme Court of California where it is pending.

Although courts in the United States have long held there is a duty to not unreasonably spread communicable diseases, don’t expect to see many suits dealing with these questions. As an initial matter, determining with sufficient evidence where the illness was contracted can be an impossible task. A real-world scenario provides an unlimited list of potential contacts for the flu, influenza, or even COVID. The current law in this area is that while an employer must protect the employee from recognized hazards, there is no specific duty that mandates specific actions an employer must take to protect an employee from an infectious disease. As court stated in Strome v N. R. Hamm Quarry. 1998 Kan. App. Unpub. LEXIS 1200, at *6-7 (Kan. App. Dec. 31, 1998), “’ordinary diseases of life”’ are not compensable because they develop without exposure to a hazard particular to the workplace. Influenza and the flu easily fail the test for whether an illness is ordinary or occupational, whether the employer placed the employee at a greater risk of contracting the disease at work. Grohskopf LA, Sokolow LX, Broder, KR, et al. Prevention and control of seasonal influenza with vaccines: recommendations of the advisory committee on immunization practices—United States, 2018–19 influenza season. MMWR. August 24, 2018. However, as we saw in Quezada, even if the illness was specific enough to allow you to show transmission likely occurred at work, some states don’t recognize a cause of action for negligent transmission of a contagious or infectious disease (aside from STDs). Further, some states have also passed laws limiting a business’ liability for the spread of specific diseases such as COVID. Chris Marr, Covid19 Shield Laws Proliferate Even as Liability Suits Do Not, BLOOMBERG LAW (June 8, 2021, 5:31AM, https://news.bloomberglaw.com/daily-labor-report/covid-19-shield-laws-proliferate-even-as-liability-suits-do-not

Employees can protect themselves and others by practicing good hygiene at the office, wearing a mask around those who show symptoms, wearing a mask when feeling ill, or remaining away from the office while contagious. Employers can help create a safe environment by having sanitizing stations available as well as policies in place that encourage sick employees from coming to work where they can infect co-workers. While keeping in mind accepted legal exceptions, an employer should also encourage and facilitate the local vaccination policy to assist in minimizing risk and illness. Ultimately, while this area of tort law is always changing, employees and employers alike should ensure they are taking reasonable steps to protect themselves and others from contagious illness.

If you have questions about this article or about protecting your company’s exposure to illness liability in general, please contact Michael Jacquez (mjacquez@setlifflaw.com) at 804-377-1262, or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.