Tysons, VA

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Employers have started to see the first lawsuits by employees and customers related to the COVID-19 pandemic.

The numbers of these types of cases will only continue to increase, given the lack of a cohesive strategy by federal and state governments in dealing with the reopening of businesses and the potential for liability. Hopefully, Congress will deal with this problem quickly and compromise. As of June 12, 2020, according to a tracker of COVID-19 cases, approximately 2,700 COVID-19 lawsuits have been filed.

The First Lawsuits Have Started

The first COVID-19 related lawsuits seen thus far include a class action by McDonald’s workers and a wrongful death action filed by a Safeway employee’s family. Many other lawsuits have been filed, both small and large, and we are starting to see employers require employees to sign waivers in order to return to work, and other businesses and events requiring individuals to sign waivers before entering.

For instance, some businesses have required individuals to sign waivers of legal rights to enter gyms or salons or to attend other events. For example, at the President’s campaign rally in Tulsa, Oklahoma attendees were required to waive their right to sue the campaign in the event they contracted COVID-19 at the President’s campaign rally.

Employers are Seeking Liability Protections

The question of whether a business is liable if their employees or customers catch COVID-19 has become a critical issue as many states reopen retail, foodservice and other businesses. Businesses contend that they are subject to numerous lawsuits without any liability protections and are seeking legal protections from Congress, or even individual states, as the pandemic subsides. On the other side, opponents of liability protections argue that limiting liability for businesses could cause them to ignore safety rules, endangering both employees and customers.

A Compromise is Very Likely

It is likely that a compromise will be found, through congressional action, or worst case, on a state-by-state basis. There will need to be a balance between the protection of employees and customers and in ensuring that businesses do not go bankrupt through needless and often frivolous litigation. It is likely that these liability protections may find themselves in pending congressional bills which provide additional financial relief to individuals and businesses affected by the pandemic. In the end, businesses and employers that act reasonably will likely be mostly safe from litigation.

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