August 3, 2020

The first wave of Covid-19 workplace lawsuits is here

Daily Briefing

    Major employers nationwide are facing a wave of lawsuits filed by workers claiming they contracted the novel coronavirus as a result of their employer's negligence—a trend that's sparking debate over whether Congress should grant businesses liability protections during the epidemic.

    HHS extends liability protection for health care workers amid coronavirus pandemic


    According to the Wall Street Journal, employers are "rarely … found liable for employee deaths tied to the workplace," both because there's a high legal bar for finding fault and because states frequently limit such complaints to employee compensation systems, which usually restrict payments based on the worker's salary or medical bills.

    However, legal experts say the United States' coronavirus epidemic could reverse that trend, because the early round of liability lawsuits filed against employers are focused on whether employers followed state and federal guidance for combatting the virus' spread, such as the use of face masks and physical distancing. According to the experts, employers that failed to adhere to the guidance potentially could be found liable in court if their employees contract the coronavirus.

    Overall, according to the law firm Hunton Andrews Kurth, as of late July, about 69 employment and labor lawsuits claiming that employees were exposed or potentially exposed to the new coronavirus had been filed.

    Inside the lawsuits

    Norma Zuniga filed one such lawsuit against Safeway and its parent company, Albertsons Companies, on behalf of her husband Pedro Zuniga, who died on April 13 from Covid-19, the disease caused by the novel coronavirus.

    Pedro worked in a Safeway distribution center in California. According to Paul Matiasic, a lawyer representing the Zuniga family, Pedro and other workers complained to their supervisors that their work environment wasn't safe, as some employees were still coming into work while they were sick.

    On March 20, the company posted a memo titled "Coronavirus Risks: Fact vs. Fiction," which stated, "If you are healthy, a mask will not protect you from the respiratory drops an infected person coughs out. Open areas of the mask can let those drops in."

    Pedro went to a hospital and tested positive for the coronavirus on April 4. Providers moved Pedro into the ICU the next day, and placed him on a ventilator and into a medically induced coma. He died eight days later.

    The lawsuit claims that Safeway failed to follow guidance issued by the Occupational Safety and Health Administration (OSHA) on March 9 that called for sick workers to be isolated. The lawsuit also contends the company misled its workers when it claimed that wearing masks wouldn't protect them from the coronavirus.

    Safeway denied the claims, saying that, as of March 20, neither guidelines from CDC nor the state of California recommended wearing masks. Safeway also said state officials inspected the facility on April 15 and found no violations of Covid-19 guidelines.

    Walmart is also facing lawsuits, including one filed by the family of a worker who died from Covid-19 and another from a part-time employee who survived the disease.

    Wando Evans, who worked overnight stocking shelves and doing maintenance at a Walmart outside Chicago, told his supervisors he had Covid-19 symptoms, but management "just put him back to work," according to Tony Kalogerakos, an attorney representing Evans' family. Evans' symptoms worsened two days later, and he was sent home. Two days after that, he was found dead in his home.

    Evans' family claims Walmart didn't follow CDC or OSHA guidelines, putting employees at risk.

    Peggy Cross, a part-time employee at a Walmart in Dallas, contends in her lawsuit that she contracted the coronavirus at work because Walmart didn't provide personal protective equipment nor implement other safety measures to protect against the virus' spread. Cross survived Covid-19 after spending a week in the hospital.

    Randy Hargrove, a spokesperson for Walmart, declined to comment on the lawsuits, but he said that, while it could be impossible to figure out where or how someone contracted the coronavirus, Walmart is taking steps to protect its employees and customers.

    Similarly, Tyson is facing litigation from the families of three employees of a pork processing plant in Iowa who died after contracting the coronavirus and developing Covid-19. The lawsuit claims that an outbreak of the new coronavirus occurred at the plant, but Tyson neglected to shut the plant down, against the recommendations of local health officials. Tyson denied the allegations and moved the case to federal court.

    Lawsuits spark debate: Should employers have liability protections during the epidemic?

    The lawsuits have sparked debate over whether businesses should be protected against such legal actions during the coronavirus epidemic, and Congress currently is considering whether to include employer liability protections in its next coronavirus relief package.

    Senate Republicans included coronavirus-related liability protections in a proposal they unveiled last week. The draft bill would implement the protections for health care entities, schools, and other businesses if their workers have "an actual, alleged, feared, or potential exposure to coronavirus." The protections would apply and provide immunity to employers from legal claims if the businesses made "reasonable efforts" to comply with government guidelines. The draft bill also would funnel coronavirus-related liability cases to federal courts, which some observers have argued could be more favorable to defendants.

    The draft bill would also cap punitive damages, give employers the right to countersue for allegations they deem "meritless," and allow the Department of Justice to sue attorneys who exhibit a "pattern" of coronavirus lawsuits. The protections called for in the draft bill would last through at least 2024.

    Senate Majority Leader Mitch McConnell (R-Ky.) said, "Nobody should have to face an epidemic of lawsuits on the heels of the pandemic that we already have related to the coronavirus." He added that the draft bill would create "a safe harbor for institutions that make good-faith efforts to follow guidelines available to them."

    But opponents of the bill have argued that government guidelines regarding coronavirus safety measures are too lax and could be met without employers enforcing any of the measures.

    Hugh Baran, a staff attorney at the National Employment Law Project, said the draft bill would set the standard for wrongdoing so high that "a worker could never expect to meet it." He added that the proposal essentially would provide employers with "blanket immunity as a matter of law even if you do nothing at all to protect your workers."

    Julia Duncan, senior director of government affairs at the American Association for Justice, said the draft bill would mean "more businesses will cut corners on safety and more people will get sick."

    "Lawsuits are helping to keep us safe. Immunity will lead to increased infection and death," she said.

    The White House reportedly is willing to sign off on a coronavirus relief package that doesn't include the liability protections, sources told the Washington Post. One person familiar with the matter said the measure was "considered important but not absolutely essential," the Post reports.

    McConnell, however, has said he won't bring any legislation to the Senate floor for a vote if it doesn't include a liability measure. "We're not negotiating over liability protection," he said. "We're not negotiating with Democrats over that" (Adamy, Wall Street Journal, 7/30; Stein/Werner, Washington Post, 7/31; Ruger, Roll Call, 7/22).

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