Businesses in California and across the country have been economically decimated by the shelter-in-place orders established to mitigate the health impact from the COVID-19 virus. Now that more businesses are reopening despite persistent detections of COVID-19 throughout the state, we can expect to see more and more lawsuits alleging that operations at a business resulted in employees becoming infected and made sick by the COVID-19 virus. These lawsuits will undoubtedly allege that businesses failed to take sufficient precautions to address the risk posed by the coronavirus.

But while lawsuits are a certainty, liability is not. Any lawsuit seeking damages for COVID-19 injuries must surmount several procedural and substantive legal hurdles.

Workers' Compensation Is Generally the Exclusive Remedy for Occupational Injuries

In general, employees are entitled to compensation from the workers' compensation program if they can show that their injury was sustained at the workplace. For infectious diseases, especially those widespread in the general population, it will be difficult for employees to show that they contracted the disease as a consequence of their employment. California law (such as Labor Code Sections 3212.6, 3212.8 and 3212.9) has previously held that certain types of workers should be presumed to have sustained certain types of disease in the normal course of their employment. There are several bills pending in the legislature that propose establishing similar presumptions for other workers, such as first responders, health care workers and essential workers.

Gov. Gavin Newsom blew past these legislative proposals by mandating in an executive order that all employees who test positive for COVID-19 are presumed to have acquired the disease as an occupational disease if they worked at a jobsite outside their home at the direction of their employer between March 19 and July 5 and they tested positive for COVID-19 within 14 days of working at their jobsite.