Businesses, schools and other organizations are starting to reopen while reducing coronavirus risk. They also must protect themselves from legal liability if there is a breakout.
Trevor Rickerd is a PhD student in biology and student teacher at Illinois State University. Rickerd said when the university announced intentions to bring students back to campus in the fall, he worried for his health and his partner's. He's asthmatic. She's type 1 diabetic. Both are high risk for COVID-19 complications.
“If I were to have to quarantine or if I were to become sick, would I have to take time off, would I have my medical expenses covered? Because those are things that are not concretely outlined in our contracts when we pick up our teaching assignments,” Rickerd said.
And you can't do biology lab instruction from home. Rickerd feels he doesn't have much of a choice but to assume the risk. He said that should not be his burden.
“The responsibility does lie with ISU to provide a safe workplace and it should not be the individual’s sole responsibility to protect themselves,” said Rickerd, who does not say whether he would sue if he catches the virus.
Charlie Moore, CEO of the McLean County Chamber of Commerce, said there is no easy answer to the COVID-19 liability questions many business owners have.
“It’s going to be wait and see (regarding liability),” Moore said. “I think employers we have talked to are doing the best they can to make sure they are implementing clean protocols.”
The U.S. and state chambers of commerce have lobbied Congress to pass a liability shield to protect businesses from coronavirus lawsuits. That hasn't happened and several thousand COVID-19 lawsuits already have been filed.
Amelia Buragas, a civil attorney in Bloomington, said there's no clear legal precedent for infectious disease lawsuits.
“That is where is gets more unpredictable because it is not something the courts and more importantly juries have dealt with those questions to the extent that they may now be asked to,” Buragas said.
She said suing for damages could be difficult. You often can't prove where you got the virus. Sometimes you can.
“The place where you are going have a lot more questions about whether or not there’s potential liability is if you have a cluster,” Buragas said.
Buragas said businesses that follow state and federal health guidelines are best positioned to limit liability. That could mean spending more time and money on sanitation and limiting customer capacity. She said fear of a lawsuit shouldn't be the only motivation.
“Instead of saying, ‘We can’t do this because someone could sue us’ and you said instead, ‘We can’t do this because someone could get hurt.’ Then you can frame the conversation in a way that limits your liability and more importantly, reduces the risk that someone could get hurt when they don’t need to,” Buragas said.
ISU officials have said plans to bring students back this fall are far from final and they could close the campus again if there's a coronavirus surge. ISU President Larry Dietz said the university is trying to reduce the risk of infection, but he acknowledges you can't eliminate it.
“I’m fully aware we are a litigious society,” Dietz said. “I think no one really blames the pandemic on any particular organization, particularly universities.”
Two students sued ISU in May claiming the university should have refunded more of their student fees when it closed the campus this spring.
Businesses also want clarity on workers' compensation. Again, the key question is how do you prove you got the virus at work?
The Illinois Workers' Compensation Commission quickly passed an emergency rule that said essential workers don't have to prove where they got the virus. A judge blocked the change after business groups sued.
Gov. JB Pritzker later signed a compromise measure that lawmakers approved.
Nate Hinch, who practices business law in Bloomington, said the new law shifts some burden of proof to the employer through what's called rebuttable presumption.
“They don’t necessarily have to have conclusive proof that Joe across the cubicle had it, so I must have got it from him,” Hinch said. “They don’t have to have that clear of a case to be able to meet that burden necessarily.”
Employers could get worker claims denied if they can prove they followed public health guidelines for two weeks prior to the employee filing the claim, or if they can show it's likely the employee contracted the virus somewhere else.
The new law also enables families of first responders who die of COVID-19 to get death benefits.
Hinch said business owners must remain vigilant even as the number of new coronavirus cases declines. He said it would be naive to assume we won't see a second wave of infections.
Some business owners have indicated concerns they could be sued if they ban a customer who refuses to wear a mask, claiming a civil rights violation. Hinch said such a case would likely have no merit because it's not discriminating against any particular class of people.
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