When the COVID-19 pandemic began, businesses anticipated the possibility of a tidal wave of personal injury and wrongful death lawsuits from employees, their family members and customers. However, as we approach the two-year mark in the pandemic, we have not seen these lawsuits materialize in the numbers anticipated. Instead of thousands of lawsuits, there have been only a few hundred—most of these against nursing homes and cruise lines associated with outbreaks in March and April 2020. Claims brought by or on behalf of employees who contracted COVID-19 in the course of their work have primarily been steered to the workers’ compensation system, where they belong. Attempts to avoid the exclusive remedy of workers’ compensation through intentional tort exceptions or expansive public nuisance theories have almost universally failed in the courts. Further, while a handful of “take-home” exposure claims by family members and suits by customers or visitors to premises have been filed, they have thus far met mixed success in the courts given the significant challenges associated with proving causation and duty in the face of a ubiquitous and highly contagious virus.
It is estimated that more than 100,000 COVID-19–related workers’ compensation claims have been filed by employees or employees’ family members since March 2020.
In most jurisdictions, workers’ compensation is an employee’s exclusive...
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