At the beginning of the pandemic, the overwhelming amount of uncertainty and fear lead to widespread shutdowns. Many businesses furloughed their employees or made remote work mandatory. One of the many factors that motivated businesses to take those steps were liability concerns. 

Workers at grocery stores, drug stores, hospitals, hardware stores and other service and retail businesses deemed essential had to continue working in close proximity to customers in public-facing roles.

Companies like these had to do the best they could to maintain a clean and safe working environment. Maintaining a safe workplace isn’t optional for any business, regardless of the personal beliefs of owners and managers. Plenty of workers and customers did get sick in stores. Most of those COVID-19 infections likely weren’t preventable by reasonable means, but some of them were.

From a legal standpoint, if a business doubled or tripled their normal cleaning and disinfecting regimen during and after operations, required every worker and customer to wear masks and instituted strict social distancing guidelines, they would likely be protected from liability.

Business owners in Arizona that refused to adjust their day-to-day operations in 2020 might not have the same defense in a COVID-19 negligence case. Even then, it would only really be possible to hold a business liable if they knowingly put customers or employees at risk.

There were several cases across the nation along those lines. In most cases an employee got sick and the employer either hid it from other employees or knowingly kept the infected person on the clock. The problems escalate when that employer doesn’t enforce safety or disinfecting protocols. These cases often follow this type of scenario:

• Employee got sick
• Employer either lets or requires the employee to keep working
• That employee gets customers or other workers sick
• The people that employee infects get seriously ill or die
• The family of the victims may be able to sue the employer for negligence

There are several difficult things with these cases. Maybe most importantly it’s difficult to prove the infected person’s injury or wrongful death can be directly tied to COVID-19 contracted at the business. The personal injury lawyer would also need to directly link the lax safety protocols to the infection being allowed to spread, despite the known risk.

COVID-19 negligence suits are in the realm of possibility and have been attempted, but they can be incredibly difficult to win unless an employer’s actions were particularly grievous.

When Did COVID-19 Personal Injury and Wrongful Death Cases Start?

Estimates suggest over a thousand COVID-19 wrongful death lawsuits have been filed across the nation. Most of those cases fell into one of two categories: residents of assisted living or retirement communities and “essential” workers. Cases began popping up in April and May 2020.

As soon as it became clear that certain people were going to be more vulnerable to infection, and their likelihood of actually getting infected would be highly dependent on controllable factors like mask wearing, social distancing and cleaning protocols, lawsuits became inevitable.

Difficulty With COVID-19 Personal Injury and Wrongful Death Cases

There have been state and federal pushes to create legislation to protect businesses from COVID-19 liability. Business liability shield laws are in place to protect them from such allegations, but that does not make them immune to all COVID-related cases.

In early April 2021, Governor Doug Ducey signed into law Arizona’s own version of these protections –SB 1377. It essentially codified specific types of negligence a plaintiff will have to prove in order to bring a successful COVID-19 personal injury or wrongful death claim in Arizona.

However, it’s worth noting these new hurdles are not all that different from what was already established. In order to succeed the plaintiff and their legal team will have to show:

• The business failed to protect workers or customers from the pandemic
• There was willful misconduct or gross negligence through the business’s actions or inactions regarding COVID-19 risks

This is one of the many personal injury laws that uses the word “reasonable” to describe risk and mitigation actions. Like with premises liability lawsuits, what’s considered reasonable is often dependent on the business, the people involved and the specific situation.

Disinfecting common areas twice as often during COVID-19 might be reasonable but disinfecting every hour would likely be unreasonable. Requiring everyone in a salon to wear a mask might be reasonable but requiring employees to stay at least six feet from their clients in that salon would be unreasonable. Each case is unique, and the law is meant to allow legitimate claims to move forward while preventing frivolous COVID-19 lawsuit from proceeding.

Do You Think You Have a COVID-19 Case in Arizona?

SB 1377 won’t stop every COVID-19 lawsuit, especially when a business was being willfully negligent in their approach to the pandemic. There are situations where employers or caretakers in assisted living facilities failed to take adequate, reasonable preventative measures, and some Arizona workers, customers and residents got sick as a result.

If you think you have a legitime COVID-19 claim in Phoenix, consider contacting one of the attorneys listed on PHX Elite Lawyers. The sooner you act the better your chances for bringing a successful claim.