As the CDC and OSHA continue to update and modify their recommendations for best practices and their mandates for safe workplaces related to the COVID-19 pandemic, it may feel like a daunting task to not only keep up with the changes but to actually enforce the new safety procedures in the workplace. However, failure to follow these rules could lead to both a sick workforce and some expensive consequences for employers. In addition to state and federal enforcement of workplace safety requirements through OSHA and other agencies, employers may also open themselves up to private “enforcement” through workers compensation actions and wrongful death and personal injury claims filed by individual employees or their survivors. At this point, the ball is already rolling for employment litigation related to COVID-19 and allegedly unsafe workplaces, and we can safely assume it will only pick up speed.
One of the first cases to garner attention is a wrongful death suit filed against Walmart in an Illinois state court earlier this month. Wando Evans worked as an associate at a Walmart store in Evergreen Park, Illinois. Evans died of complications related to COVID-19 on March 25, and his estate filed suit on April 1, less than two weeks later. The suit claims that Walmart did not follow the recommended safety procedures, and that such conduct was “willful and wanton misconduct” on the part of Walmart, leading to Evans and other employees contracting the virus. In fact, a second employee of the store died of COVID-19-related causes only days after Evans. Specifically, the suit alleges that Walmart failed to provide adequate protective equipment, training, and warnings that other employees were experiencing symptoms. It also alleges that the store did not properly clean and sterilize, screen new workers for symptoms, or implement social distancing guidelines.
Since the Walmart case was filed, other similar cases have been filed alleging that employers are not adequately protecting their employees. Just this past week, the New York State Nurses Association filed three suits on behalf of health care workers alleging unsafe conditions, and the Transport Workers Union of America filed suit against the Miami-Dade County’s Department of Transportation alleging a lack of safety precautions for transportation workers. These cases are just the beginning. And as more and more of the workforce begin returning to the office, these cases will likely expand beyond essential workers into all types of workplaces.
Can an employee bring a wrongful death claim?
While employers have always had an obligation to provide a safe workplace, employers have not faced wrongful death and personal injury lawsuits frequently because these claims are usually precluded in the employment context. Most states have laws providing that workers compensation claims are the exclusive remedy for on-the-job injuries, even death, where such injury was not intentional. However, we may see a trend of plaintiffs claiming that employers’ failures to follow workplace safety measures regarding COVID-19 were so egregious, they rendered the injury or death intentional or willful, making the claims viable.
Proving that an employer willfully or intentionally allowed or caused an employee to contract COVID-19 will not be an easy burden for a plaintiff to meet, but there are a few reasons that filing a wrongful death or personal injury suit instead of or, where allowed, in addition to, a workers’ compensation claim is appealing to a plaintiff. These reasons include:
- Higher Potential Recovery. First and foremost, while workers’ compensation benefits are capped, a lawsuit has the potential for a much higher recovery for a worker or their family. In a wrongful death or injury case, a plaintiff could potentially seek economic damages, such as medical expenses, funeral expenses, loss of income, loss of future earning, and loss of the value of any other services they provided to the household. A plaintiff may also seek non-economic damages, such as compensation for pain and suffering and loss of consortium to a surviving spouse. Plaintiffs may also make claims of emotional distress based on contracting the virus or working conditions related to the virus. And in some states, a plaintiff may even be able to seek punitive damages related to these claims.
- Publicity. COVID-19 coverage is saturating the media, and plaintiffs’ lawyers may try to use this to their advantage. A wrongful death or personal injury suit filed in court is public record, and plaintiffs may use this as a tool, both to bring the situation more attention and as a bargaining chip in settlement negotiations.
- Settlement. Even though it may be difficult to prove an employer intentionally allowed or caused an employee to contract COVID-19, lawyers may file a suit strong enough to avoid immediate dismissal in hopes that an employer will be willing to settle quickly to avoid drawn-out litigation or extended media coverage of the case.
What can employers do about it?
As states begin reopening beyond essential business, employers will be faced with balancing the benefits and risks of having their on-site workforce back. Employers who closely follow the recommended workplace safety practices and successfully prevent COVID-19 from entering the workplace in the first place won’t face any wrongful death or personal injury claims, making prevention the ultimate defense. But, even where precautions are taken, COVID-19 is highly contagious and can sneak in. Therefore, it is critical to have well-documented policies which are followed in practice.
Follow the CDC’s Guidance for Businesses and Employers
By following the CDC’s recommended safety practices, and updating them as the recommendations are updated, employers are not only actually doing their best to keep their workers healthy, but are establishing a clear defense against any claims that the employer was willfully or intentionally failing to protect workers. The CDC’s Guidance for Businesses and Employers includes recommendations on cleaning and disinfecting, social distancing, and other strategies for reducing transmission, such as identification of employees with symptoms and immediate separation of those individuals from other workers. A more in-depth discussion of recommended workplace safety procedures can be found on the Butler Snow Coronavirus Hub here. As OSHA begins enforcing workplace safety related to COVID-19, it is possible that the CDC guidelines will be considered less like recommendations and more like a baseline requirement for workplace safety.
Talk to Your Employees
Another key way to avoid litigation is to communicate with your employees about COVID-19. This includes educating them about how to reduce the spread of COVID-19, a practice recommended by the CDC, to make sure everyone individually is doing their part. Communication also includes notifying workers of confirmed cases in the workforce. COVID-19 is making a tightrope walk out of the competing requirements of protecting employee privacy and protecting employee safety. However, without identifying the COVID-19-positive individual, notice of a confirmed case is not only a best practice, it may be considered a requirement under OSHA’s general duty clause. Furthermore, by keeping employees informed, employers are fostering a sense of trust and transparency in the workplace. Employees and families of employees who genuinely trust their employer and have felt cared for, seen and heard by their employers are far less likely to sue their employers amid the heightened stress and emotional times created in this COVID-19 pandemic.
Please contact us with questions and concerns
Recommended workplace practices surrounding COVID-19, both related to workplace safety recommendations and how those affect employee rights, are ever changing as our knowledge of COVID-19 increases and as social distancing measures are both being implemented and relaxed. Recommendations will continue to evolve as more lawsuits are filed and more agency enforcement actions clarify agencies’ understanding of best practices as well. Butler Snow attorneys continue to stay abreast of these changes. Please continue to check the Butler Snow Coronavirus Hub for the most up-to-date information. If you have any questions about how to implement workplace safety practices and avoid litigation, please contact any of Butler Snow’s Labor & Employment attorneys for advice. Additionally, if you have been threatened with or served with any suit alleging a workplace COVID-19 injury, you should seek advice of counsel immediately.