shutdown

Employer Liability for COVID-19 Transmission: Yay or Nay?

By on April 30, 2020,
The SARS CoV-2 coronavirus causes COVID-19 disease.

The SARS CoV-2 coronavirus causes COVID-19 disease.

In the current environment, employers are biting their nails in fear of liability claims from their employees who contract COVID-19 in the workplace. Is this a risk? While no appellate court, much less a trial court, has yet to decide this issue, the answer is most likely negative.

Follow CDC and OSHA Guidelines

This, of course, presumes that, as employer, you maintain proper social distancing within the employee ranks, require protective masks and clothing, as the case may be, and follow generally accepted guidelines issued by the CDC and OSHA.

Company Policy on Illness

This outcome is also contingent upon, among other things, close scrutiny of the health of your workforce and an open policy that permits employees to bow out of the work place at the first symptom of an illness without fear of reprisal or demotion.

Deviating from Protocols Could Result in Devastating Liability

On the other hand, employers who allow non-essential workers to go back to work prematurely or to break social distancing guidelines, will surely face suits from sick employees and their families.  Given the harsh realities of the virus and its relatively high mortality rate, deviating from the protocols set out by the regulatory authorities and social norms could result in devastating liability to the employer. As some intentional conduct is not covered by insurance, the risk of a break-the-company verdict is a real concern as well.

In sum, employers whom exercise good judgment and put the health of their workforce ahead of profits will have little risk of liability. Those that do not, face an almost certain risk of suit and a potentially large damage award.

Have questions about employee liability claims?

Call Dan Voelker at (312) 870-5430.

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Business Interruption Insurance: Savior or Sorrow?

By on April 27, 2020,
While it may be difficult to imagine a policy that does not provide coverage for an interruption in revenue caused by a pandemic or the like, many policies have exclusions for the same.

While it may be difficult to imagine a policy that does not provide coverage for an interruption in revenue caused by a pandemic or the like, many policies have exclusions for the same.

Under the current circumstances, business interruption is an on-going reality. Until state and local governments allow businesses to reopen, loss of business and revenue will continue to grow. At the same time, many expenses continue to accrue and must be paid.

The issue as it relates to business interruption insurance, though, is whether or not you have a policy of insurance and whether or not there is coverage available to you. The question invariably comes down to the precise language of your policy of insurance. While it may be difficult to imagine a policy that does not provide coverage for an interruption in revenue caused by a pandemic or the like, many policies have exclusions for the same. Of course, under the applicable law, the language of the policy will be construed in favor of the insured (or policyholder) and against the insurer (or insurance company). A careful review of your policies is a prerequisite to a considered approach to making a claim for lost revenue.

Assuming there is coverage, the next issue will be to determine what losses in business and revenue are recoverable under the policy. While the insured will certainly want to compare the revenue/profit he was making before the catastrophic event with his business/profit revenue after the event, the insurer may argue that this is not the proper analysis. Instead, the insurer may estimate the business the insured would have done had the state and local governments not ordered a shutdown in order to use this figure as the more appropriate measure of the claim. This will, no doubt, be a matter of contention and a strong negotiation will be a must.

Daniel J. Voelker, who is both an experienced litigator and a C.P.A., can help guide you through both phases of the analysis referenced above.

Do you need help with business interruption insurance?

Call Dan Voelker at (312) 870-5430.

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