Wisconsin Legislative Council recently released an issue paper overviewing employer liability for employees diagnosed with COVID-19 after returning to work.

The paper explains that Wisconsin’s Worker’s Compensation Act provides that employee injuries sustained from an illness or infection are coverable by Worker’s Compensation, but employees must prove they became ill in the course of their employment. Employees seeking Worker’s Compensation coverage for a COVID-19 diagnosis must prove their illness was caused by exposure at work. Injuries including COVID-19 are covered whether or not the employer was negligent.

The Worker’s Compensation Act provides an exclusive remedy for employees who are injured in the course of their employment, meaning that employees may not bring separate actions outside of the Worker’s Compensation system against their employer for an employment-related injury. However, employees may still bring actions against third parties other than their employer, if the third party is at least partially responsible for their injury. Employees must prove that the third party’s negligence led to their injury, which could include COVID-19 exposure.

The widespread COVID-19 pandemic leaves employers and third parties – even those following government recommended best practices – open to significant liability if their employees or customers contract the virus. A recent poll showed that one-third of employees would sue their employer over contracting COVID-19.

To protect employers from civil claims filed outside of the Worker’s Compensation system, Wisconsin Civil Justice Council, Wisconsin Manufacturers & Commerce, the Wisconsin Chapter of the National Federation of Independent Business, and other business associations are seeking COVID-19 liability protections for Wisconsin businesses as the state continues its economic restart. Read more about efforts to enact state level liability protections at https://www.wisciviljusticecouncil.org/.