Employer Liability and Defense: COVID-19 Litigation in California


The world has been turned inside-out by the continued spread of the novel coronavirus. Millions of families have suffered the death of a loved one or watched their livelihoods slip away. The United States has been unwittingly center stage in the COVID-19 global health crisis. With mandatory quarantines, widespread business closures, and questionable stimulus efforts to keep the country moving, Americans are having to continually pivot to survive as a nation.  

If you live in California, you may have noticed that businesses are taking every precaution to open up their establishments in the safest ways possible. But that isn’t without its own set of challenges. Not only do business owners have to comply with strict guidelines to avoid going out of business, but there is an ever-emerging risk of being sued should an employee or customer contract COVID-19 while on their premises. California is one state that has paid added attention to creating protections for business owners and employees that are impacted by COVID-19 legal disputes. 

COVID-19-Related Lawsuits in California 

Are you a California business owner and worried about being liable if a customer or employee contracts COVID-19 on your watch? Do you want to protect your investments and business while also keeping your staff and customers safe? Well, we have your back. Here are three of the most important factors you should understand regarding California COVID-19 legislation and liability. 

Avoid Unlawful Termination & Discrimination Lawsuits in California  

One way to preemptively defend yourself against COVID-19-related litigation is to be objective about every situation and make sure you are being reasonable. This will help you reduce your liability. Base layoffs on criteria that are focused on performance metrics and measurable data. Meaning, if an employee has not been showing up to work or if their output is lacking, these factors may be grounds to terminate their employment. 

Make sure you can prove these shortcomings, so that there is no way for ex-employees to claim they were unfairly terminated or discriminated against. As a business owner, make sure that you are setting expectations for your staff fairly, across all roles and departments. This will help you defend yourself against any claims that you expect more productivity from one employee and not the other, otherwise called favoritism. This will establish that your labor practices are consistent and fair across the board. 

Follow All Labor Laws & Guidelines 

As a business owner, you should hold yourself to the highest standard of compliance and continue to follow all local, state, and federal laws. In addition, you should adhere to the guidelines currently in place by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). This will help ensure that you are not liable for negligence or in violation of workers’ compensation laws. 

  • Ensure that you provide employees with adequate personal protective equipment (PPE) as defined by the CDC and enforce mask-wearing rules throughout every level of your company or establishment. Consider temperature checks for employees as well.   
  • Put in place cleaning and sanitation routines and make sure everyone complies. Implement social distancing procedures and ensure that it is clearly posted for both employees and customers to see. 
  • Continue to offer fair wages, paid leave, and sick days that meet all federal, state, and local guidelines. 

Does the California WARN Act Apply to You as an Employer?

According to the Employment Development Department of California (EDD), “Chapter 4, Part 4, Sections 1400-1408 of the Labor Code, the WARN Act protects employees, their families, and communities by requiring that employers give a 60-day notice to the affected employees and both state and local representatives prior to a plant closing or mass layoff.” The WARN Act applies to any employer or business that has at least 75 employees. 

This thoughtful legislation provides employees and their families with advance notice of unemployment to give them ample time to adjust, reconfigure finances, and seek employment alternatives. This includes providing time to obtain skills or certificates needed to secure another job or to pursue alternative employment opportunities. 

Consider Pros and Cons of COVID-19 Liability Waivers

Due to the increased risk of customers and employees contracting COVID-19 while in a place of business, many business owners are adopting the use of COVID-19 liability waivers that insulate them from litigation. The question becomes, are these waivers enforceable under California law? Here are two things to consider. 

  • For Customers: If it is proven to not violate public policy, these waivers are likely enforceable in commercial buildings, whether they may be a restaurant or retail space. 
  • For Employees: Typically, current California laws do not favor waivers. You may find that even if you have signed waivers, your protections are limited in discrimination cases and when mass furloughs have taken place. Consider public opinion as well. In the age of social media, you may want to refrain from enforcing such waivers if the optics are bad. However, they may serve as an added layer of protection, depending on the situation. 


OakTree Law is open for business during the COVID-19 crisis. If you’re in need of an experienced Los Angeles business attorney that can help defend you and your business against civil litigation, reach out to OakTree Law now. We’ll help you properly navigate the complicated waters of California liability laws as it pertains to coronavirus in the workplace. Serving clients in Los Angeles, Orange County, and throughout Southern California, OakTree is here for you. Call us at 888-219-0654 for a free phone consultation today!