Potential Latency-related COVID-19 Lawsuits and Lessons from the Asbestos Litigation

January 4, 2021Article

The asbestos litigation is entering its fifth decade, prolonged by latent malignancies occurring up to 50 years after exposure to amphibole asbestos. Now, a new source of potential latent harm has emerged: COVID-19.

Researchers believe the virus may cause long-term health problems. The Centers for Disease Control and Prevention has reported that COVID-19 can cause heart damage. Dr. Andrew Budson of Harvard University noted that “the virus attacks the nervous system,” causing impaired cognition in nearly one-third of COVID-19 patients.

The long-term effects of the virus are not yet fully understood, but all signs point to impending litigation that may begin years down the road.

This issue presents two questions for employers, universities, hospitals, and other organizations: 

  1. What is the risk of COVID-19 litigation?
  2. How can we prevent it?

Asbestos-related lawsuits are typically premised on negligence stemming from failure to warn about hazards, strict liability for those hazards, and breach of warranty. A COVID-19 lawsuit filed by someone with severe, latent medical conditions might look similar.

Workers may claim their employers failed to take steps to avoid transmittal of the virus or warn of its dangers. Students diagnosed with COVID-19 may allege their schools or universities failed to minimize spread of the virus. Other plaintiffs may claim that a lack of testing, unavailability of personal protective equipment, and failure to warn about positive tests within the organization contributed to their illnesses.

As with asbestos litigation, a plaintiff in COVID-19 litigation may not be required to prove the exact cause of his or her illness. In many jurisdictions, the plaintiff will simply need to demonstrate that a defendant’s negligence likely contributed to development of that ailment.

Furthermore, to the extent that a lawsuit is premised on latent harm caused years after a COVID-19 diagnosis, the statute of limitations may not begin to run upon diagnosis of COVID-19, but rather when the latent effects are discovered.

So, how can organizations minimize the risk of COVID-19 liability? Most importantly, they should create a plan with their legal counsel based on applicable state and federal law.

Additionally, because negligence actions are typically premised on a failure to act in a reasonably prudent manner, organizations must assess what is prudent and consistently follow through on meeting that standard. Following these simple steps may reduce the potential for liability down the road:

  1. Follow all local, state, and federal guidelines to limit transmission of the virus;
  2. Warn your employees, students, or members of positive cases within the organization;
  3. Provide plenty of hand sanitizer, disposable masks, and gloves;
  4. Discourage sharing of common items such as computer keyboards and accessories;
  5. Provide reasonable accommodations for remote work, to the extent practicable.

And finally, organizations should carefully document all steps taken to reduce the risk of transmission. A failure to preserve records of preventative measures could be devastating. On the other hand, some legal claims may be dismissed where the defendant has taken appropriate steps and documented them.

Authors: David E. Freed (Associate, New York)