Negligence resulting in third-party bodily injury and harm
The Occupational Safety and Health Act of 1970 (“OSH Act”) defines a safe workplace as being “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. The United States saw thousands of work-related deaths leading up to the enactment of the OSH Act. The majority of these deaths were from the manual labor workforce who contributed to the coal mining, factory and steel industries. The legislative intent behind the OSH Act was to regulate high-risk-job industries to prevent or minimize on-the-job injuries and illnesses from negligent business practices. With that understanding in mind, the relevant questions at hand are what constitutes a ‘safe work environment’ during times of a pandemic and whether businesses recognized and negated COVID-19 work-related hazards? These questions are currently the center of COVID-19 employer negligence claims across the country.
A. Negligence torts in business practice.
Many employers who kept operations running during the early days of the pandemic have experienced some level of internal or public backlash for their business decisions. Much of the criticism stems from allegations that employers negligently placed employees and/or customers in situations where they became infected or were at high risk of exposure to COVID-19.
The most highly publicized examples of alleged business negligence during the COVID?19 public health crisis are the claims against Princess Cruise Lines (“Princess”). Princess first received criticism in the early days of the pandemic when it continued sailing within Asia despite the continent’s mounting health concerns. Specifically, seven (7) notable lawsuits are pending against Princess in which passengers have alleged the company “failed to implement proper screening procedures and took a ‘lackadaisical approach’ to customer safety.” According to Plaintiffs, these accusations came after Princess proceeded with a voyage on February 21, 2020, “despite knowing that two passengers who disembarked the ship from a prior voyage had COVID-19 symptoms.” In addition, Plaintiffs accused the company of failing to inform passengers that “sixty-two passengers and crew [members] who were previously onboard with the passengers who experienced the COVID-19 symptoms were also on board with [P]laintiffs.” Collectively, Plaintiffs accused the cruise company of breaching its duty of care in that it had knowledge of the prior passengers’ symptoms and failed to inform and protect Plaintiffs from “exposure to the risk of immediate physical injury” which caused “emotional distress and trauma from fear of contracting the virus.”
Similarly, Walmart has been sued for negligence over the death of a COVID-19-infected employee. Walmart allegedly failed to exercise reasonable care to keep its store “in a safe and healthy environment and, in particular, to protect employees, customers and other individuals within the store from contracting COVID-19 when it knew or should have known that individuals at the store were at a very high risk of infection and exposure due to the high volume of individuals present at and circulating throughout the store on a daily basis." Plaintiff further states that store management failed to properly clean and sterilize the premises, provide adequate protective gear to employees, or enforce social distancing recommendations. The lawsuit alleges that "[a]s a direct and proximate cause of the above acts and/or omissions of negligence, the decedent was infected by COVID-19 and ultimately died due to complications of COVID-19."
In another case, Smithfield Foods, Inc. (“Smithfield”) has denied it was negligent after several of its Missouri meatpacking employees tested positive for COVID-19.Plaintiffs allege they worked in close proximity to one another, were not given proper protective equipment, and were not allowed to exercise proper social hygiene practices during work hours. As a result of Smithfield’s alleged negligence, Plaintiffs claim that multiple employees contracted the virus while working at the meatpacking plant and became ill.
B. Causation is likely difficult to satisfy.
To successfully argue negligence, a plaintiff must show that a defendant had a “duty of care, breached that duty, and that the damages were proximately caused by the breach.” Defendants such as Princess Cruise Lines, Walmart, and Smithfield Foods, Inc., must focus their defenses heavily on the aspect of proximate cause. Proximate cause has two components: foreseeability and cause in fact. Defendants will likely succeed on a motion for summary judgment or at trial arguing that the plaintiff could not prove by a preponderance of the evidence that “(i) the negligence was a substantial factor in bringing about the harm and (ii) absent the negligence, the harm would not have occurred”— commonly referred to as the “but for” test.
Defendant employers must litigate that the plaintiff cannot make a proximate cause showing because the array of community exposures to the virus creates irrefutable reasonable doubt. As such, pinpointing a specific instance or event which caused a person to contract the virus will prove not just extremely challenging, but likely impossible. Not every person who becomes infected will show symptoms; and even if they do, it may remain unclear as to how or where a claimant was exposed. Thus, it is difficult to show that an employer negligently failed to keep employees “free from recognized hazards that are causing or are likely to cause death or serious physical harm” under the OSH Act.
Further, employers must litigate COVID-19 negligence claims on the credibility of the witnesses testifying as to the transmission of the disease. COVID?19, like the Ebola virus and other infectious diseases, “involve[s] matters beyond the common understanding of the ordinary lay person, [and thus, causation] must be proved by expert testimony.” In Texas Health Resources v. Pham, the Texas Court of Appeals in Dallas concluded that the “likelihood of transmitting the Ebola virus, assuming different policies and the use of different protective equipment, is beyond a lay person's common understanding.” Courts should make a similar finding that the likelihood of transmitting COVID-19 through contact tracing is beyond a lay person’s common understanding and will also need to be proved by expert testimony. After all, “[m]ere lay testimony about causation cannot establish that a claimant has a probable right of recovery.” Thus, absent expert testimony that can arguably establish specific causation, employers will likely prevail in negligence claims made by plaintiffs.
C. Defending against Workers’ Compensation claims.
D. The argument for immunity.
Legislatures and governors are considering providing businesses with full immunity against employer-related negligence claims relating to the transmission or infection of COVID?19. Immunity from negligence claims would instill a greater sense of security and confidence to restart the American economy. However, a full immunity solution may unjustly frustrate the path to legal recourse available to employees and customers with legitimate claims against businesses for violation of their common law duties; it may also disincentivize employers from the rigorous implementation of apposite safety precautions.
Ultimately, many costs of such an alternative may reside with federal, state and local governments in the form of increased Medicaid expenditures, free care, and other social welfare protections for the victims of COVID-19 contracted in a commercial setting. To calm concerns that businesses may not follow all precautionary measures if granted complete immunity, there is an alternative compromise of government-granted qualified immunity. Qualified immunity may apply to businesses which meet specific precautionary standards criteria. The criteria would directly relate to the precautionary countermeasures to COVID-19 including compliance with the Center for Disease Control and Prevention (“CDC”) and state virus control guidelines. Therefore, the qualified-immunity option would not only provide complete immunity for compliant businesses but would also provide a pathway for workers and patrons of businesses to pursue legal remedies for COVID-19 transmission where a business fails to comply with required standards.
Governments could further limit business liability by developing targeted immunity policies which would provide immunity only to those businesses where employees and patrons necessarily face a heightened risk of contracting COVID?19, namely, health care providers. Several states have already taken such steps including New York, Massachusetts, Illinois and Arizona. These targeted protections insulate those businesses most likely to face COVID-19-related claims, but also run the risk of creating disincentives to take the maximum level of precautions. However, to alleviate such concerns, targeted immunity could be conditioned upon a business's adherence to safety and sanitation guidelines and could carve out exceptions from liability for willful misconduct or gross negligence.
 29 U.S.C. § 654 (1970).
 Judson McLaury, The Job Safety of 1970: Its Passage was Perilous, Dep’t Labor, https://www.dol.gov/general/abogutdol/history/osha (last visited May 7, 2020).
 See Id.
 See Id.
 See, e.g., Jay Barmann, Grand Princess Passengers Sue Cruise Line For Negligence, SFIST (Apr. 9, 2020), https://sfist.com/2020/04/09/nine-grand-princess-cruise-passengers-are-suing-cruise-line-for-negligence/; Vin Gurrieri, Ex-Walmart Worker’s Death Spurs ‘First’ III. COVID Death Suit, Law360 (Apr. 6, 2020), https://www.law360.com/articles/1260853/ex-walmart-worker-s-death-spurs-first-ill-covid-death-suit; Complaint, Dalton, et al. v. Princess Cruise Lines Ltd., No. 2:20-cv-02458 (C.D. Cal. 2020).
 See, e.g., Joshua Espinoza, Whole Foods Gets Backlash For Reportedly Recommending Employees Donate Their PTO During Coronavirus, Complex (Mar. 13, 2020), https://sfist.com/2020/04/09/nine-grand-princess-cruise-passengers-are-suing-cruise-line-for-negligence.
 See, e.g., Id.; Vin Gurrieri, Ex-Walmart Worker’s Death Spurs ‘First’ III. COVID Death Suit, Law360 (Apr. 6, 2020), https://www.law360.com/articles/1260853/ex-walmart-worker-s-death-spurs-first-ill-covid-death-suit.
 Complaint, Dalton, et al. v. Princess Cruise Lines LTD., No. 2:20-cv-02458 (C.D. Cal. 2020).
 See generally Id.
 Donna Higgins, Roundup: First COVID-19 suits filed; states adopt legislation, 25 No. 10 Westlaw J. Health Care Fraud 02 (Apr. 9, 2020); Complaint, Austin et al. v. Princess Cruise Lines Ltd., No. 20-cv-2531, 2020 WL 1282232 (C.D. Cal. 2020); Complaint, Sheedy et al. v. Princess Cruise Lines Ltd., No. 20-cv-2430, 2020 WL 1231185 (C.D. Cal. Mar. 13, 2020); Abitbol et al. v. Princess Cruise Lines Ltd., No. 20-cv-2414, complaint filed, 2020 WL 1231198 (C.D. Cal. 2020); Complaint, Kurivial et al. v. Princess Cruise Lines Ltd., No. 20-cv-2361 (C.D. Cal. 2020); Complaint, Gleason et al. v. Princess Cruise Lines Ltd., No. 20-cv-2328 (C.D. Cal 2020).
 Complaint, Evans v. Walmart, Inc., et al., No. 2020L003938 (Ill. Cir. Ct. 2020).
 Complaint, Rural Cmty. Workers All., et al. v. Smithfield Foods, Inc., et al., No. 5:20-cv-06063 (W.D. Mo. 2020).
 “The elements of negligence are a duty, a breach of that duty, and damages proximately caused by the breach.” Texas Health Res et al. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732, *4 (Tex. App. Aug. 3, 2016).
 “The virus that causes COVID-19 is spreading very easily and sustainably between people. Information from the ongoing COVID-19 pandemic suggests that this virus is spreading more efficiently than influenza, but not as efficiently as measles, which is highly contagious.” CDC, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads, html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html (last visited May 7, 2020).
 Texas Health Res. et al. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732, *4 (Tex. App. Aug. 3, 2016); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901 (Tex. App. 2009); “An invitee enters land with the owner's knowledge and for the mutual benefit of both.” Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App. 2001), petition denied; See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000); See also Brown v. Nicholson, 1997 OK 32, 935 P.2d 319.
 CDC, Guidance Documents subsection to Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/communication/guidance-list.html?Sort=Date%3A%3Adesc (last updated Mar. 5, 2020).
 See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006); See also Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 348 (Tex. 2015) (cited by Texas Health Res. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732, *5 (Tex. App. Aug. 3, 2016)).
 Texas Health Res., et al. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732, *5 (Tex. App. Aug. 3, 2016).
 Westlaw, Insurance Coverage for COVID-19 Losses Chart, Practical Law Checklist, available at W-024-5319.
 See, e.g., Letter from Cassie Brown, Comm’r Workers’ Comp., Tex. Dep’t Ins., to Tex. Workers’ Comp. System Participants (Mar. 30, 2020) (on file with Tex. Dep’t Ins.).
 “Essential services shall consist of everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, plus religious services conducted in churches, congregations, and houses of worship.” Press Release, Off. Tex. Governor Greg Abbott, Governor Abbot Issues Executive Order, Implements Statewide Essential Services And Activities Protocols (Mar. 31, 2020) (on file with author).
 E.g., Spanish Flu of 1918, Hong Kong Flu of 1968, and H1N1 of 2009.
 See, e.g., David Morgan, Corporate America seeks legal protection for when coronavirus lockdown lifts, Reuters (Apr. 21, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-liability/corporate-america-seeks-legal-protection-for-when-coronavirus-lockdowns-lift-idUSKCN223179. This immunity would exclude claims against an employer for gross negligence or willful misconduct.
 E.g., the Occupational Safety and Health Administration, the U.S. Centers for Disease Control and Prevention, etc.