Are GCs Responsible if Employees of Subcontractors Contract COVID-19 on Job Sites?

Several members have asked for clarification on culpability if an employee of a subcontractor contracts COVID-19 while working on a jobsite.  Tim Gibbons with Chambliss Law has provided guidance for our Chapter members:

The illness should be handled as though it were any other alleged work-related injury/illness and should be subject to the exclusive remedy under the workers' compensation law.  Employee would first look to subcontractor's workers' comp policy, but might also try to rope in the G/C as a "statutory employer" if the subcontractor doesn't have workers comp.  Remember that, even if the subcontractor has told the G/C it has workers' comp insurance, if it doesn't, the G/C may be regarded as the "statutory employer" for workers' comp purposes. 
 
Conventional wisdom among employment and workers' comp attorneys and insurance adjusters is that it's going to be exceedingly difficult for an employee to demonstrate that contraction of COVID-19 is compensable under Tennessee workers' comp law (and similarly in other states).  In TN, an illness is not compensable unless "it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes."  Unless the employee is a recluse living alone and has gone nowhere except his job site, this is going to be a tough standard to meet.
 
As to what's happening when employees get the virus, that could present a different question.  Typically, the employer puts the employee on leave until no longer symptomatic (i.e., recovered).  Employer also notifies persons with whom the positive employee was in "close contact."  If they are asymptomatic, they can continue coming to work as long as they appropriately monitor (e.g., temperature checks before shift).  Employee's work station, tools, etc., should be thoroughly sanitized. 

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