Ebola: Is There Any Employer Liability?

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EbolaIt is hard for me to ignore the headlines this week, October 13, about Ebola. This headline hits close to home because Presbyterian Hospital and “ground zero” are just a stones throw from my house. As each day passed, it seemed the virus was creeping closer to my house.

Ebola got me thinking about what an employer’s liability would be in a case like this.

Liabilities on two fronts

Essentially employers face liability on two fronts: 1) failing to take steps to protect other employees and 2) failing to take steps to protect third parties. Let’s talk about taking care of employees first.

Workers’ Compensation for subscribers

Most employers in Texas have workers’ compensation insurance. The Texas Workers’ Compensation Act provides an employee the only remedy for a work related injury or death suffered while in the course and scope of employment. Therefore, if an employee contracts an illness because of his our her job or if an employee contracts an illness from another employee while on the job, workers’ compensation would be the only remedy available to that employee, if the employer was a subscriber.

Potential legal action for gross negligence if non-subscribed

However, if an employee dies while working for a subscribing employer, the employee’s spouse and children may recover against the employer by proving gross negligence.

The gross negligence standard goes above and beyond simple negligence. In the case of gross negligence, an employer must know or should have known something was wrong, but failed to take steps to prevent the wrong. Although this standard is very difficult for a plaintiff to prove, it might be met, for example, when an employer learns that an employee is very sick and contagious, but fails to send the employee home or allows the employee to continue working around other employees. In this case, the employer knew the employee was sick and contagious, yet failed to take steps to protect other employees. This is a very simple example, but it gives you a basic idea of when a work place injury or illness may not be covered by workers’ compensation.

For you nonsubscribers, workers’ compensation is not an available remedy. Although I am a supporter of nonsubscription, it should only be used by employers who have robust safety programs and an engaged workforce. In a nonsubscription case, the employee may sue the employer in any court of competent jurisdiction and recover the typical tort damages. However, employers electing to go nonsubscriber generally provide their employees with a robust workplace injury benefit plan, that has an arbitration provision. Thus giving the employer some efficiency and control over how a injury claim is handled.

Third party injury

In the case of third party injury, it is pretty straight forward. Barring contractual limitations, a company owes third parties a duty to act reasonably; the standard of care in negligence cases is that of “ordinary care,” or that which a person of ordinary prudence would or would not have done under the same or similar circumstances. So in the case of a company with a sick employee, a jury may be asked to determine if the company took reasonable steps to protect its customers from the employee. Therefore, a company should take the same or similar steps it would take to protect its employees from a very sick employee.

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