Texas employers who have opted out of workers’ compensation coverage may face significantly increased workplace risks in the weeks and months ahead. All employers will face unique challenges due to the risk of workplace exposure to COVID-19. But, the potential liability from COVID-19 workplace illnesses is particularly problematic for Texas employers who have opted out of the workers’ compensation system. Specifically, Texas employers who have opted out of the workers’ compensation system will not have the benefit of workers’ compensation’s preclusive effects. They face the substantial risk that simple negligence will be enough to support employee claims arising from COVID-19 exposure. As a result, it is imperative for opt-out Texas employers to carefully review and update their workplace health and safety practices to maximize mitigation of any risk of workplace transmission of the coronavirus.

Does workers’ compensation coverage bar COVID-19 workplace lawsuits in Texas?

Not necessarily.  The COVID-19 pandemic will create workplace liability issues unique to Texas.  Like other states, Texas has a workers’ compensation law that provides no-fault, employer-funded insurance for work-related injuries (including occupational diseases).  But unlike most other states, Texas allows employers to opt out of workers’ compensation and instead face potential liability under tort law.  Thus, Texas employers who have opted out of workers’ compensation likely face a much greater risk of exposure for COVID-19-related workplace issues.

Typically, when an employee experiences a work-related injury, the employee pursues a claim through the workers’ compensation system.  Although, the particulars differ in each state, workers’ compensation essentially guarantees the employee (or their estate) compensation for the injury.  In exchange for that guarantee, the workers’ compensation laws usually prevent the employee from bringing negligence-based tort claims against his or her employer to recover compensation for the injury.

The preclusive effect of workers’ compensation is often referred to as the “workers’ compensation bar” or “exclusivity bar” since workers’ compensation is generally the employee’s exclusive source of recovery.  Triggering an exception to the exclusivity bar generally requires the plaintiff to show the employer was reckless or engaged in willful misconduct.  Without the exclusivity bar, employees of opt-out Texas employers can sue their employers directly for lost income, medical expenses and perhaps even death benefits for simple negligence.

Best practices to minimize the risk of workplace exposure lawsuits

Opt-out Texas employers should adhere to best practices to minimize their heightened risk of liability.  The following recommendations are some best practices employers should consider implementing to reduce the potential liability if an employee contracts COVID-19 at work.  Although currently there are no guaranteed measures to prevent spread, employers can assume that the best defense against workplace-exposure lawsuits will be proof that they recognized the potential for risk and implemented the best possible measures to protect their employees.

• Review and follow the CDC’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus, which is frequently updated. Click here for a link to CDC’s Interim Guidance for Business.
• Review and follow OSHA’s Guidance on Preparing Workplaces for COVID-19. For example, OSHA recommends that employers should consider which jobs have a higher risk of exposure, and develop an Infection Disease Preparedness and Response Plan. Click here for a link to OSHA’s Guidance.
• Review and comply with the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Given the unprecedented nature of the pandemic, for example, the EEOC has taken the position that employers – at least for now – may screen job applicants for symptoms of COVID-19 (after making a conditional job offer) as long as it does so for all entering employees for the same job.  Employers may also take the temperature of on-site employees even though this constitutes a medical exam.  Click here for a link to the EEOC’s Guidance.
• Consider establishing policies and practices for social distancing and frequent cleaning and sterilization routines. Display posters and train employees on social distancing guidelines and personal hygiene.
• Encourage employees to wear, or provide employees with, PPE, including face masks and gloves. Consider installing acrylic shields or similar barriers to distance cashiers from customers.
• Employees who appear to have symptoms (i.e., fever, cough, shortness of breath), upon arrival at work or who become sick during the day should immediately be separated from other employees and customers and sent home.
• If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality by not identifying the employee by name as required by the Americans with Disabilities Act.

These suggested measures are not intended to be exhaustive.  Information distributed by governmental agencies such as the CDC and OSHA should be frequently reviewed.

As always, please contact your Reed Smith employment attorney for guidance and assistance in developing workplace safety plans and procedures to help minimize the spread of COVID-19 to employees, customers and visitors of your business.