What if you get Covid -19 (Coronavirus) while at work? Can you sue your employer or file a claim for Workers Compensation?

Workers’ compensation law provides no-fault coverage for work-related accidents and “occupational disease.” However, unlike other states, Texas allows employers to opt-out of workers’ compensation law. If the employer has Texas workers’ compensation insurance then generally they cannot be sued for their own negligence in failing to protect the employee from infection. But if the employer has Texas workers’ compensation then the employee does not have to prove negligence to recover, they simply have to prove that the injury or the occupational illness occurred in the course and scope of their employment. However, Texas is unique in that many employers (some of the large some of them small such as Wal-mart and many trucking companies) are not required to carrier Texas workers’ compensation insurance. If the employer does not carry Texas Workers’ Compensation insurance (or they have their own occupation injury plan) they can be sued if they were negligent in causing the employees injuries or occupational illness. In the case where the employer does not carry Texas Workers’ Compensation insurance, the employee must still prove that the employer was negligent in causing the injury or occupational illness.

Can employees whose work exposes them to a much higher risk of infection claim workers’ compensation benefits or lawsuits (if they don’t have Texas Worker’s Compensation) against their employer? Texas workers’ compensation law defines an “occupational disease” as a “disease arising out of and in the course of employment.” Tex. Lab. Code 401.011(34). However, law goes on to exclude “an ordinary disease of life to which the general public is exposed outside of employment”. Does it make a difference whether some workers are exposed in a way very different from the general public’s exposure?

We don’t really know these answers yet, but if the courts ultimately decide that illness due to the COVID-19 (Coronavirus) is not available under workers’ compensation law, then that may mean that both employers who do and those that don’t carry workers’ compensation may be liable for the death and illnesses caused by Coronavirus. As stated above, the general rule is that an employer who carrier Texas workers’ compensation insurance cannot be sued by the employee, even if the employer was negligent in causing the employee’s injury or occupational illness (this defense is known as the “exclusive remedy defense”), but the rule in Texas is that in an injury not covered under workers’ compensation law is also not subject to the exclusive remedy defense.

If your employer does not carry Texas Workers’ Compensation or have their own Occupational Injury Plan, they are known as a non-subscriber (because they opted out of subscribing to Texas Workers’ Compensation). A non-subscriber’s liability turns on the issues of negligence (did the employer fail to exercise due care in protecting its employees?), causation (did the employee contract disease because of the employer’s negligence?). As for negligence, recommendations of the Centers for Disease Control and the new OSHA guidelines on safe work practices during the pandemic will be important for proving what an employer reasonably could have done to prevent infection for employees who continue to deal face-to-face with the public or other employees. While employers might initially have reasonably asserted lack of notice about measures for protecting employees from contagion, that defense will become less persuasive over time.

The fact that it is possible to contract disease outside the workplace does not necessarily foreclose an employee’s proof that work exposed the employee to a much greater risk, and that a causal link to work and the employer’s negligence is likely. Finally, a nonsubscriber employer might have established an accidental injury insurance benefit plan combined with an arbitration agreement and waiver of the right to sue. Such an employer might believe its benefit plan protects it from liability for COVID-19 (Coronavirus) claims. In fact, an accidental injury plan might be no protection at all. To the extent that the benefit plan contains the same exclusion for “ordinary” disease as workers’ compensation law, a waiver of the right to sue might be ineffective. Thus, if the insurance company prevails on the issue of coverage, the result might be to expose the employer to unlimited liability.

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