Amazon and the New York State Attorney-General are locked in a legal battle over two workers who claim they contracted COVID at one of the retail giant’s warehouses. The case demonstrates the legal risks employers have faced since the coronavirus pandemic began last spring. Business groups, including ACCA and Associated General Contractors of America (AGC), have pushed for national legislation to provide employers with some limited protection to liability lawsuits stemming from employees contracting COVID. It’s uncertain now if that legislation will pass and how much protection it will actually provide.

Chris Czarnecki, ACCA’s government relations representative and coalitions manager, has worked on getting this legislation passed since shortly after he joined the group last year. Czarnecki still believes it can happen, although he grows less optimistic. He points to a renewed push by the U.S. Chamber of Commerce to create bipartisan support. Still, recent elections will have consequences.

“We were a little more optimistic when Republicans had control of the Senate,” Czarnecki said.

James Christianson, AGC’s vice president of government relations, sees little chance of a national law passing now. The issue last fall was the Republicans wanted the liability restrictions included in a relief bill and the Democrats wanted funding for states and cities. In the end, neither side achieved their goal. Now, the Democrats have shown they can pass some form of relief bill without any Republican support. The mood has changed, Christianson said, “from unity to unilateralism.”

“There are incredible political challenges that we now face given the current landscape in D.C.,” he said.

State House Switches Favor Liability Limits

It’s a different story at the state level, where Republicans actually made gains in November. Nearly a dozen states have passed some form of limited liability protection already, and more now seem ready to act. For example, the New Hampshire State Senate, which switched party-control after the elections, is now considering a bill to provide limited liability protection.

“The battles for this will be fought at the state level,” Christianson said.

The problem with this approach is it creates an inconsistent patchwork, said David Waxman, an attorney with Saul Ewing Arnstein and Lehr. If New Hampshire does pass a liability law, it will cover an HVAC contractor when his employees work in New Hampshire but not in Massachusetts. Some state laws cover all fields, while others are limited to a few sectors — usually healthcare.

As is often the case, the lack of a federal law means the state law is sometimes contradictory. Some states lack mask mandates, but the Centers for Disease Control strongly recommends wearing masks. Also, not all of the liability protection even comes from laws. Some of them result from executive actions by governors. This means clashes between the governor and state legislators over emergency authority can render the liability protections void.

“The scope of the interventions is not consistent,” Waxman said.

Lawsuits Are Still a Possibility

Even the most inclusive laws only provide a defense for employers who do get sued. They don’t prevent the suits from being filed. This allows some attorneys to seek a financial payoff just to avoid the cost of going to trial.

“That’s something that we as an industry want to avoid, especially for small employers,” Christianson said.

Cases over COVID exposure often become tricky. It’s hard to prove where someone contracts COVID. An HVAC technician who gets sick may have caught the virus on a job site or at the supermarket on the way home from the job site. It often comes down to proving how much effort an HVAC contractor puts into protecting employees.

All the existing state legislation covers negligence, but still allows lawsuits for gross negligence. There is a major difference between the two. The more serious charge requires intent. In other words, an HVAC contractor would have to recklessly place employees at risk.

Some actions, such as not providing personal protective equipment, are obviously reckless. Others are less obvious. Who determines which type of negligence it is? A jury.

That means an HVAC contractor could be subject to the views of 12 people — and those views are changing. Waxman said most people were sympathetic at the pandemic’s start. They understood much of the risk was unknown. Today, he said, they feel employers should know better. They are also increasingly aggressive.

“It’s very likely that jury attitudes are going to change, and what’s considered gross negligence may be different than what was considered gross negligence two years ago,” Waxman said.

Having good facts is the best defense, Waxman said. This means taking the necessary precautions. Czarnecki said HVAC contractors should familiarize themselves with various rules and follow the advice of the local health authorities.

Christianson points out that workers are often the most valuable asset for an HVAC contractor, so they do as much as possible to protect these assets.

Even doing everything right can only minimize risk. HVAC technicians work in high-risk environments for catching COVID, ranging from hospitals and supermarkets to people’s homes. They take steps to limit exposure, but there’s only so much that can be done. Czarnecki said HVAC contractors need liability protection so they can take on these tasks.

“Our guys shouldn’t be penalized for doing the jobs they’re doing to keep society going,” he said.