By Michelle Richards
In the United States, the imposition of tort liability for the transmission of an infectious disease goes back more than a century. It is no surprise, therefore, that similar claims have been filed for damages arising from the transmission of the COVID-19 virus.
However, in order for these claims to be adjudicated fairly, they must be judged against a standard of care. A standard of care provides a benchmark for the level of caution a reasonable party would take in particular circumstances. If the standard of care is not met, liability may be imposed.
Historically, this standard is established through reliable knowledge of the source and nature of the contagion, as well as through clear and articulated scientific protocols to mitigate transmission of that contagion. For example, consider norovirus, which causes more than 19 million cases of acute gastroenteritis in the United States every year. Norovirus litigation typically hinges on “an identified population becoming infected through a common, readily identified source.” When several individuals from a common population, like a cruise ship or restaurant, become ill at the same time, it is more likely that a claim will be filed, as the “cluster of cases may represent a failure to implement basic food safety and public health guidelines” like requiring employees to wash hands after using the bathroom.
On the other hand, the lack of a standard of care has been critical to the viability of plaintiffs’ claims for negligence relating to Legionnaires’ disease. The severe lung infection is caused by the inhalation of contaminated water droplets, but, prior to 2015, liability claims often were dismissed at the summary judgment stage for the plaintiff’s failure to identify a reliable standard of care. However, in 2015, an industry standard was promulgated by the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE), and the following year, the U.S. Centers for Disease Control and Prevention (CDC) collaborated with partners on a toolkit to promote the implementation of this standard. Subsequently, it became “less difficult” to establish the standard of care for those plaintiffs.
Conversely, in the 1980s, the use of the legal system to control the spread of HIV/AIDS provides an example of the danger in using unreliable standards of care to impose either criminal or civil liability. Early in the HIV/AIDS epidemic, laws were enacted to criminalize and/or control behaviors that were believed to contribute to the transmission of the disease. However, as noted by the CDC, “[t]hese laws were passed at a time when very little was known about HIV including how HIV was transmitted and how best to treat the virus.” As a result, behaviors that had nothing to do with transmission, such as spitting, were unfairly criminalized. Further, these laws served to discourage HIV testing, in the interest of avoiding criminal charges and potential civil liability.
Applying these historical approaches to the standard of care during the COVID-19 pandemic, a review of the public health mandates propounded by public health officials reveal a great deal of flux, such that it is difficult to consider those measures a reliable “standard of care” for liability claims. For instance, the suggested use of face masks/coverings and social distancing guidelines have changed multiple times throughout the pandemic, and also have varied from state to state.
Most importantly, although the CDC and the Occupational Safety and Health Administration (OSHA) each issued safety practices for businesses and employers to follow relative to COVID-19, both suggest — either explicitly or implicitly — that they should not form the basis for a standard of care for tort liability. For example, the 2020 OSHA guidance documents contained the following disclaimer:
This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.
Likewise, during that same time, the CDC guidelines only provided “interim guidance … based on what is currently known about the coronavirus disease 2019 (COVID-19).” The heavily disclaimed guidance “may help prevent workplace exposures to COVID-19 in non-healthcare settings” (emphasis added).
Notably, in August of 2022, the CDC “streamlined” their COVID community recommendations because “COVID-19 no longer severely disrupts our daily lives.” The new guidance focuses more heavily on vaccinations and protocols for those who have been diagnosed or knowingly exposed, and not on potential transmission of the disease. As a result, any reliance that had been placed on the one organization best positioned to provide the necessary guidance relative to the standard of care for COVID-19 is now even more tenuous.
Some have suggested that, in identifying the standard of care, COVID-19 transmission claims are better compared to influenza. Because influenza is “ubiquitous and expected,” it is rare for the virus to become the basis for civil litigation. It has been noted that, “much like coronavirus, it is difficult to track where or how someone became infected with influenza, which creates evidentiary barriers to liability claims.” Similarly, because one can carry SARS-CoV-2 but have no symptoms, it is possible that an individual will not have knowledge, either actual or constructive, that they have the virus and could be spreading it, making it very difficult, if not impossible, to establish any semblance of a standard of care or duty by which liability could or should be imposed.
In short, a reliable standard of care in the COVID-19 context has not been established. In fact, the federal administrative agencies charged with setting public health protocols have specifically stated that their own recommendations for proper standards of conduct are not intended to be “legal obligations,” “standards,” or “regulations,” but rather are intended to be “advisory” in light of what is currently known about COVID-19.
Without a reliable standard of care, COVID-19 tort claims should not see the success achieved in other contagious disease cases. Perhaps more importantly, predicating liability on unreliable standards of care improperly places judges in the position of dictating social health policy from the bench. Accordingly, the judiciary should exercise restraint and not be baited into legislating public health policies.
Michelle Richards is an Associate Professor of Law at the University of Detroit Mercy School of Law.