By Steven Moore

Law360 (May 5, 2020, 3:35 PM EDT )

Steven Moore

Senate Majority Leader Mitch McConnell, R-Ky., has made it eminently clear that in the next COVID-19 relief bill it will be top priority to include a broad liability shield to protect all companies from COVID-19 lawsuits as they reopen[1] (six states already provide immunity to medical workers[2] but most still provide for suits based on "gross negligence").

Likewise, White House economic adviser Larry Kudlow has stated publicly that in order to get the economy jump-started the administration is looking to provide strong protections for companies against lawsuits as they reopen.[3]

Business lobbying groups, such as the U.S. Chamber of Congress, are frantically lobbying Congress for a "safe harbor" particularly against any COVID-19 related negligence suits.[4]

Justin Wolfers, an economics professor at the University of Michigan, argues that McConnell is in essence arguing that companies "should have the right to be negligent, and suffer no consequences for negligence that kills their staff."[5] Wolfers maintains that "[y]ou want people to be able to sue — because you want people to be liable for the damage they do if they aren't acting responsibly."[6] Wolfers argues that if Congress "let[s] employers off the hook, they won't take safety precautions," which will negatively affect the economy by resulting in damage to the community and society as a whole.[7]

Georgetown University Law Center professor Robert Thompson apparently concurs, stating that "[b]lanket immunity seems to be an overreach. We use negligence suits because we want bumper guards on actors who make decisions that aren't justifiable, those who don't exercise ordinary care."[8]

Not surprisingly, once more the entities pushing for widespread immunity are dredging up "the big, bad trial lawyers," who are painted as fanged beasts looking to blow down the houses of the three industrious little pigs.

In truth, however, a number of the problems facing companies today are in fact risks voluntarily assumed in the past in the balancing of the desire to save money on floor space and on environmental temperature control against potential future health consequences for their employees. These risks now appear to be bad decisions given the fact that COVID-19 can lead to a significant number of deaths and long-term morbidities in those who survive.

Many companies that threw the disease risk and liability dice concluded the risk that any single employee could prove workplace negligence in disease spread was low enough to support the design of open offices or hybrid open offices where little, if any, separation exists between employees, and many more people are packed into significantly smaller space than in the past.

As noted in my previous Law360 article, these employers made their office design choices irrespective of the fact that the United States had barely dodged five serious potential pandemics over the past 50 or so years.[9] It is now estimated that about 70% of offices in the United States have some form of open plan.[10]

Recent data from the South Korea Centers for Disease Control and Prevention regarding an office building in downtown Seoul clearly indicates SARS-CoV-2 can spread widely and quickly in an open-office setting versus a conventional office setting. The finding of rapid COVID-19 disease spread in open offices by the CDC of South Korea is further supported by other studies showing widespread COVID-19 spread in people kept in close proximity to each other for significant periods of their working day — studies of the sailors on the USS Kidd and USS Theodore Roosevelt, and of prisoners in federal prisons.

In a pre-published study by 26 authors spread among the Korea Centers for Disease Control and Prevention, the Seoul Metropolitan Government, the Seoul Center for Infectious Disease Control and Prevention, Inheon Metropolitan City, and Hallym University College of Medicine, the epidemiology of a COVID-19 outbreak in a 19-story combination office and residential building in downtown Seoul, South Korea, is set forth.[11]

The unnamed building studied is said to exist in the "busiest urban area" of Seoul, with commercial offices on the first through 11th floors and residential apartments on the 13th through 19th floors. The study looked at 922 employees who worked in the commercial offices, and 203 residents who lived in the residential apartments (as well as 20 identified visitors) using real-time reverse transcription PCR assays.

The building was reported to have a single COVID-19 case on March 8, with the authorities closing it the very next day, March 9. Over a four-day period all occupants of the building were tested, with all positive SARS-CoV-2 infected people being immediately quarantined. The authors also tested all persons who lived with any of the positive employees or residents (225 persons). Everyone was asked to recall any symptoms that they had prior to the closure and to record symptoms after the closure.

Of the tested employees, residents and visitors, 97 were identified as being positive for SARS-CoV-2, all but two being employees of the four floors associated with an open-office call center. Of the call center floors, 94 cases were found on the 11th floor, which typically housed 216 employees. The authors calculated the 11th floor attack rate of SARS-CoV-2 infection to be 43.5% over a nine-day period.[12]

The floor plan of the 11th floor provided in the study is particularly elucidating. The floor was divided in half by a number of conference rooms, bathrooms, and emergency exit stairs ("dividing structure").

One half of the floor above the dividing structure (for purposes of this paper — the "top half" of the floor) comprised 10 long tables with 13 seats (most employees facing another employee across the table), and one table (with no employee facing another) seating seven.

The other half below the dividing structure comprised five similar long tables of 13 employees (most employees facing another employee across the table) with one shorter table seating seven employees (with no employee facing another) along with a few conference rooms and small multiperson separated offices (the "bottom half" of the floor).

A single hallway that abutted the elevator banks traversed the dividing structure allowing employees access to both halves of the floor. The plan suggests that the entire floor had a common HVAC system. Of the 94 employees that were positive for SARS-CoV-2, 95% of the infected were found in the top half of the floor, with only 5% found to be SARS-CoV-2 positive infected in the bottom half of the floor.

Interestingly, most of the 11th floor employees in the top half of the floor were women, who had to transverse down the elevator abutting hallway to the considerably less affected lower half of the floor to gain access to the women's restroom. The design of the hallway, however, used two sets of automated doors[13] to gain access to the elevator hallway, and then to gain access to the lower half of the floor where the women's restroom entrance was located. Although not entirely clear, it appears that the two halves of the highly infected 11th floor had separate coffee and tea common areas, which may have contributed in part to the uneven spread of the disease.

The study showed, not surprisingly, that all infections were clustered on the tables, that is, it was far more common to be infected if another infected person was in close proximity. The South Korean study clearly demonstrates that high floor occupancy without any dividers between employees can clearly lead to rapid spread of SARS-CoV-2, and that even minor changes, such as the addition of automated doors, can greatly reduce the spread of the disease between isolated employee populations. And some 16.2% of family members of those infected on the 11th floor also came down with COVID-19, emphasizing the unforeseen damage coming from the spread of.SARS-CoV-2 in the workplace.

It is not clear why the spread of the disease was not greater throughout the building given the large number of employees contaminated on the 11th floor and the fact that common elevators were used throughout the building. It might be surmised that people were already protecting themselves from hand to mouth contamination by carefully touching the elevator button surfaces, such as pressing the buttons with their knuckles or using tissue to press, due to prior training with other infectious agents such as SARs. The rapid air exchange systems associated with most elevators may have also significantly reduced the exchange of airborne virus between persons.

The South Korean study raises serious concern about companies that have adopted an open-office design given the 43.3% spread of SARS-CoV-2 in just nine days! From the study, it can be surmised that those that have brought into the even more modern concept of the "agile open office" (where employees are not given assigned seats but rather randomly move between seats and tables daily) have designed a truly nightmarish environment for the possible spread of SARS-CoV-2.

The problem of rapid SARS-CoV-2 spread in close shared quarters is supported by other studies, for example, the study of sailors on the USS Kidd, a deployed guided-missile U.S. destroyer. Purportedly the sailors on the Kidd had adhered to all the CDC and Navy recommendations to keep the virus from spreading. In the case of the Kidd, symptoms surprisingly emerged more than a month after a Hawaii port visit for replenishment.[14] Nearly 63% of the tested crew were found to be positive for the virus within five days of the first report of a sailor exhibiting symptoms of an influenza-like illness (April 22).

Likewise, a study of the sailors on the aircraft carrier USS Theodore Roosevelt (CVN-71) demonstrates rapid spread of SARS-CoV-2 in close shared quarters. Approximately 25% (940 sailors) were found to be inflicted with SARS-CoV-2.[15]

Even a greater spread of the disease was seen in a study of 2,700 inmates in federal prisons. In such study, over 70% of prisoners tested were found to be SARS-CoV-2 positive.[16] It is a considerable challenge to prevent the virus spread in correctional facilities, due to the many crowded common areas accessed by a large prison population, in particular the cafeteria.[17]

All of these studies clearly suggest the need for improving the standard of care among companies employing the open-office concept, and that have incorporated large common areas in their office design.

The answer to the question of whether federal immunity to COVID-19 suits will lead companies to ignore the real-world harm that may come from reopening their businesses in their present office configurations, without undertaking any reasonable safety precautions, is quite important.

Clearly, the South Korean study demonstrates that the so-called open office adopted by so many U.S. companies is extremely dangerous in the COVID-19 world. Even if Congress exculpates employers that do nothing to protect their employees (and their families) in such open-office environments from common negligence, it is possible that such employers may still be found liable under a theory of gross negligence.[18] 

If broader immunity from all negligence is passed by Congress, businesses employing such open-office designs still must consider the economic effect of having nearly over their half workforce infected in a few days as seen in the South Korean study, as well as the effect such designs may ultimately have on the retention of, and hiring of, employees. Further such broader immunity to all negligence claims comes to pass, businesses still must take into regard the future legal implications of doing nothing now should any new epidemic should arise in the future that is not named COVID-19.

Lastly, although rarely discussed in legal papers, morality would also dictate that employers knowing of the extreme risk of the open office in the spread of SARS-CoV-2 should do something to mitigate against COVID-19 injuries even if granted broad immunity. In the later regard, in closing, I point to the retort of the chain-fettered ghost of Jacob Marley to Ebenezer Scrooge's praise of "you were always a good man of business, Jacob" in Charles Dickens' "A Christmas Carol" — "Business! Mankind was my business. The common welfare was my business."

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Steven Moore is head of the U.S. intellectual property and technology team at Withers LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Kragle, Andrew, "McConnell wants broad Liability Shield in Next COVID-19 Bill", Law360 April 27, 2020, 8:59 EDT at https://www.law360.com/articles/1267837/mcconnell-wants-broad-liability-shield-in-next-covid-19-bill.

[2] Kang, Y. Peter, "6 States with COVID-19 Medical Immunity, and 2 Without," Law360 April 17, 2020, 11:07 EDT at https://www.law360.com/articles/1264964/6-states-with-covid-19-medical-immunity-and-2-without.

[3] Axelrod, Tal," Kudlow: businesses shouldn't be held liable if employees, customers contract coronavirus", The Hill April 22, 2020 3:25 pm EDT at https://thehill.com/policy/finance/494168-kudlow-businesses-shouldnt-be-held-liable-if-employees-customers-contract.

[4] Id.

[5] Johnson, Jake, "No Consequences for Negligence that Kills: McConnell Wants Corporate Immunity from Covid-19 Lawsuits," Common Dreams, April 28, 2020 at https://www.commondreams.org/news/2020/04/28/no-consequences-negligence-kills-mcconnell-wants-corporate-immunity-covid-19 and https://t.co/tX3eDTjnRP.

[6] Livini, Ephrat, "US Businessess want immunity from coronavirus lawsuits," Quartz Daily Brief, Washington, DC, April 24, 2020 at https://qz.com/1843873/us-businesses-wants-immunity-from-coronavirus-lawsuits/.

[7] Id.

[8] Id.

[9] Moore, Steven, "Rethinking the Open Office in Light of COVID-19," Law360 April 20, 2020, 4:11 pm EDT at https://www.law360.com/articles/1265403/rethinking-the-open-office-in-light-of-covid-19.

[10] Margolies, Jane, "A Quiet Respite in a Bustling Open Workplace," The New York Times Business Section, February 18, 2020 at https://www.nytimes.com/2020/02/18/business/office-workplace-privacy.html.

[11] Park, Kim, Yi, Lee, Na, Kim, Kim, Kim, Kim, Park, Huh, Kim, Yoon, Jang, Kim, Chang, Kim, Lee, Kim, Kim , Kweon, Choe, Park, Park and Jeong, Coronavirus Disease Outbreak in Call Center, South Korea, CDC – Centers for Disease Control and Prevention, Vol 26(8) August 2020 (early release) at https://wwwnc.cdc.gov/eid/article/26/8/20-1274_article.

[12] The earliest recollection of a COVID-19 symptom in the building was actually recorded by a single person found on the far-less populated (27 persons) 10th floor. The infection on the 10th floor only spread to one additional person – neither of these persons reported that they ever went to the 11th floor call center.

[13] See footnote 10 above.

[14] Lagron Sam, "USS Kidd Arrives in San Diego to Treat COVID-19 Outbreak; First Cases Emerged More than A Month After Hawaii Port Visit," USNI News, April 28,2020 5:28pm at https://news.usni.org/2020/04/28/uss-kidd-arrives-in-san-diego-to-treat-covid-19-outbreak-first-cases-emerged-more-than-a-month-after-hawaii-port-visit.

[15] LaGrone, Sam, "950 Sailors Now Have COVID-19; 2nd USS Theodore Roosevelt Sailor in Intensive Care," USNI News April 14, 2020 11:17pm at https://news.usni.org/2020/04/14/950-sailors-now-have-covid-19-2nd-uss-theodore-roosevelt-sailor-in-intensive-care.

[16] Balsamo, Michael, "Over 70% of tested inmates in federal prisons have COVID-19," AP News, April 29, 2020 at https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f.

[17] Rubin, Rita, "The Challenge of Preventing COVID-19 Spread in Correctional Facilities," JAMA Network, April 7, 2020. Doi:10.1001/jama.2020.5427 at https://jamanetwork.com/journals/jama/fullarticle/2764379.

[18] Gross negligence is distinguished from common negligence in that to prove common negligence one must only show a failure to use the level of care and caution that an ordinary person would use in similar circumstances, while to prove gross negligence one must show that there that there was a conscious and voluntary disregard (reckless) of the need to use reasonable care with the foreseeable knowledge that the act would cause grave injury or harm to persons, property of both. See, e.g., County of Sacramento v. Lewis , 523 U.S. 833, 849 (1998).

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