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In light of the rapid rise and global spread of COVID-19, including in workplaces, companies have legal obligations when it comes to the novel virus. “Most countries have laws designed to protect employees from physical harm at work,” Peter Susser and Tahl Tyson wrote for Harvard Business Review in connection with companies’ legal risks when it comes to the Coronavirus. In the U.S., they note, “employees are protected under the Occupational Safety and Health Act, so if an employee becomes infected at work, in some circumstances the employer may face penalties.” 

“Unprepared employers may be exposed to lawsuits related to workers’ compensation, invasion of privacy, discrimination, unfair labor practice, and negligence,” Susser and Tyson assert, and at the same time, may also be “exposed to a laundry list of human resources-related legal concerns if they do not have adequate communicable-illness policies and response plans” in place.

Given the the growing number of headlines about how individuals are – and in many cases, are not – properly adhering to states’ mandates of social distancing, the government’s nation-wide limitations on non-essential travel, and the Center for Disease Control and Prevention (“CDC”)’s guidelines on self-quarantining, an interesting question has been raised about what – if any – liability COVID-19-infected individuals stand to face if they infect others. 

This is something that governments are thinking about. In a statement early last month, the Department of Justice Canada, for instance, said that a “criminal negligence” cause of action, one that stems from a showing of “wanton or reckless disregard for the lives or safety of other persons,” could apply “if a situation involves a person who knows they have COVID-19 intentionally acts to spread the virus to others and one or more of those other people suffers bodily harm or death as a result.” 

In its statement, as reported by Global News, Canada’s Department of Justice “specified that a person’s behavior would have to differ ‘substantially’ from typical behavior of a reasonable person acting in those circumstances,” thereby, suggesting that the bar for such an offense would be relatively high. 

Meanwhile, on March 24, U.S. Deputy Attorney General Jeffrey Rosen sent various regulators and federal law enforcement agencies a memo addressing “criminal activities” and “schemes related to COVID-19,” including “the purposeful exposure and infection of [others],” which Rosen said “potentially could implicate the nation’s terrorism-related statutes,” and thus, require prosecution. Again, there is likely a high threshold at play here, with Lawfare citing FBI warnings that “white supremacist groups were encouraging members who become sick to spread the virus to Jewish people, minorities and police officers,” as a potential example of how the terrorism statutes could come into play.

Putting terrorism-centric efforts aside and looking beyond other purely intentional efforts to spread the virus, there is another string of instances that has garnered attention: ones in which individuals either suspect they may be infected with the highly-transmissible disease or are awaiting COVID-19 test results, and act in what could be construed as a negligent manner. 

As MSNBC reported last week, “Six days after taking a coronavirus test, Senator Rand Paul continued to work at the U.S. Capitol and attended a luncheon with his fellow GOP Senators.  A physician himself, Senator Paul made the decision to continue working and exercising in the Senate gym after showing no symptoms of the illness.” He subsequently tested positive, “prompting rare public rebukes for his conduct from both sides of the aisle.” 

“Palm Beach County residents expressed similar outrage when a New York physician awaiting his own test results boarded a JetBlue flight to Palm Beach,” per MSNBC, as part of a larger trend of individuals fleeing cities, particularly Manhattan, to their secondary enclaves.

Meanwhile the fashion industry has hardly been immune. Headlines were made when at least two individuals tested positive after attending some of the Fall/Winter 2020 runway shows in Milan and Paris (the New York Times reports that the two Vietnamese women did not begin experiencing symptoms until after fashion month had concluded). After returning from Paris in early March (after attending runway shows in Milan directly before that), many U.S.-based fashion editors and other show-goers opted to self-quarantine; at least some (presumably those without symptoms) returned to business as usual before the end of the 14 day-period recommended by the CDC. Still yet, there is the infected influencer who is being accused of failing to properly quarantine after testing positive for COVID-19, and then traveling shortly after exhibiting symptoms.

Back in the regular world, about the 70 or so college students recently garnered widespread attention after leaving left Austin, Texas for a spring break trip to Cabo San Lucas, Mexico, thereby, running afoul of the nationwide non-essential travel ban. As many as 28 of them tested positive upon their return to the states.

What does the law set out in connection with instances like these?

Palm Beach County State Attorney Dave Aronberg and MSNBC’s Chief Medical Correspondent Dr. Dave Campbell, assert that with the exception of Ohio – where it is a second degree misdemeanor for someone who believes he has a “dangerous, contagious disease” to “knowingly fail to take reasonable measures to prevent exposing himself to other persons” – states in the U.S. have not codified any relevant disease epidemic transmission laws that can be used to charge those who may have recklessly endangered others. 

(“Roughly two-thirds of U.S. states have [oft-controversial] laws that make it a crime to knowingly expose others to HIV,” according to the Center for HIV Law and Policy, while “about a dozen states have added hepatitis C to the list of medical conditions for which people can face criminal prosecution if they knowingly expose others,” NPR has previously reported).

Aronberg  and Campbell do, however, assert that a lack of such legislation does not mean that states are without recourse should they seek to assign criminal liability to individuals who have helped to spread the coronavirus, pointing to “culpable negligence” – which assigns criminal liability for gross acts of negligence that expose others to harm – as a potential option for prosecutors. 

Even with such negligence causes of action in mind, they note that the laws are “an imperfect fit for a new pandemic like coronavirus, as courts usually demand that prosecutors show that someone’s negligence would likely have caused harm to others.” That is problematic because “at this stage, there are a lot of unknowns about COVID-19, including the chances of spread and mortality rate,” which would likely make the necessary medical testimony difficult to come by. 

More than that, it would have to be shown that the hypothetical defendant “knew or should have known that he had the infectious disease when he acted so recklessly,” which is no small element to prove. 

Ultimately, if we see action taken against individuals, it will likely be in a different context. After all, “It is much easier for prosecutors to charge someone with violating a quarantine order, which is also a misdemeanor, and more cut and dry (either the defendant was in his quarantine location or he was not),” they state, “than dissecting an infected individual’s decision making to show culpable negligence.”