Cutler Law Firm, P.C.

Does an Employer Have Civil Liability for a COVID-19 Infection?

Dear Clients:

We hope you and your families are happy and healthy.  

We have been asked about the employer’s civil liability with regard to COVID-19. Some of you have been asked if employers can have liability other than workers’ compensation if there is a COVID outbreak at work.  This gets into the area employment law. Since you handle their workers’ compensation you should not be giving concrete answers about employment matters outside of the workers’ compensation area.  We think you can tell your employers about the basic framework of Iowa law.  However, for specific answers they should be directed to their employment lawyers.  We think it is important for you to know the framework of this area of law, and so we have set forth the basics below. We are happy to assist you with your preliminary employment law questions and encourage you to reach out when these questions arise.

In Iowa, workers’ compensation benefits are the exclusive rights of the employee against the employer for a work injury (including contracting a disease at work). Iowa Code Section 85.20(1). Unless the legislature or courts change this fundamental principle, we do not believe that employers are likely to be liable in a civil court should their employees become infected with COVID-19. There are some exceptions to this rule for intentional torts performed by the employer.

It is possible that employees may file a civil claim for co-employee gross negligence. Iowa Code Section 85.20(2). In Iowa, workers are immune from negligent acts which injure one of their co-employees. However, if a co-employee is grossly negligent, an injured employee can sue the co-employee in civil court. There are three distinct elements necessary when trying to establish co-employee gross negligence. They are:

  1. That the co-employee knew of the danger or peril,
  2. That the co-employee knew that injury was probable as opposed to a possible result, and
  3. There was a conscious failure to avoid the peril.

Thompson v. Bohlken, 312 N.W2d 501, 505 (Iowa 1981).

Most of these cases are decided based upon the second element. The courts have required a person suing their co-employee to prove that injury was in fact “probable.” In this context probable means that the co-employee must place the injured worker in imminent danger so that they, more likely than not, would be injured. Henrich v. Lorenz, 448 N.W.2d 327 (Iowa 1989).

Assuming a company is using reasonable safety precautions and following the current existing government guidelines, we think it would be very difficult to establish that an injury was probable as opposed to possible.  In these circumstances a co-employee gross negligence case likely will fail. 

Please feel free to contact us if you have any additional questions. 

Sincerely, 

Chuck Cutler (Cell 515-240-7309)
Steve Brown (Cell 515-321-4300)
Bob Gainer  (Cell 515-423-9293)
Greg Taylor (Cell 309-264-1767)
John Cutler (Cell 303-912-6838)


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