While numerous states are acting to broaden the scope of their workers' compensation systems to take into account COVID-19 related exposure claims at work, a continuing drop in tort claims threatens to violate the exclusive remedial action. Will courts open the locks?
Most recently, a lawsuit was filed in Pennsylvania on May 7, 2020, in the name of the estate of a meat packaging worker who contracted COVID-19 and died in early April. The lawsuit includes claims for negligence, death and fraudulent misrepresentation. This case is just the most recent example of why employers, many of whom are rapidly opening states, are facing uncertainties as to whether their potential liability for exposure to COVID-19 at work is costly and unpredictable Area of crime disputes. The relevant questions for employers are (1) what legal basis could be for these claims and (2) what can be done to proactively mitigate the threat.
The possible exceptions to the rule
Almost every state makes participation in the employee compensation system a mandatory requirement for doing business in the state. While employee compensation is set by law and therefore has to be regulated by the state, the states set the employee compensation almost uniformly as an exclusive remedy for injuries to employees. However, there are a number of exceptions to the exclusivity rule. Two of the most appropriate potential exceptions in expected COVID-19 scenarios may be the following.
First, many states recognize an exception to injuries caused by different degrees of suspected misconduct by the employer. Depending on the state, the threshold can be as low as gross negligence or as high as willful harm.
Second, most employee compensation laws recognize a distinction between an accident at work and an occupational disease. Again, the precise legal definitions vary, but in general an occupational disease is determined by whether the condition of the worker emerged from and in the course and scope of the employment and whether the infection was caused by work-related conditions, so that the work led to a higher risk of developing the disease in a different way than the general public. According to this general standard, such an "ordinary life sickness" is generally not eligible for compensation under the employee compensation laws.
Curb the flood
The COVID-19 pandemic has created uncertainty on all fronts, and neither the workplace nor the courts have been freed from the challenges. Attempts by the plaintiffs to file unlawful workplace claims will raise new problems and untested theories. How can an employer best position itself?
The key factors determining liability are the behavior of the accused and the question of the cause of the damage for each unlawful act. The good news is that employers can address both issues in the same way: by keeping up-to-date with the recommendations from various key government agencies, such as the United States Centers for Disease Control and Prevention (CDC), and implementing them promptly. and the Federal Agency for Safety and Health at Work (OSHA). If the courts are confronted with behavior in a crime case in which a new liability theory is presented, they will seek advice on the standard of care. Currently, government agencies and health agencies charged with protecting the public and workers during the COVID-19 pandemic are reliable sources of the latest developments related to the disease.
Regarding the cause of the damage, a plaintiff is required to demonstrate under state law that he or she is most likely to be infected by exposure to COVID-19 at work, not elsewhere. The "most likely standard" will be critical, since in most cases it is practically impossible to prove with certainty where and how a person was exposed during a global pandemic. Plaintiffs 'lawyers may be forced to make comparisons between their clients' work environment and other aspects of their daily lives. An employer who can demonstrate that he has implemented recommendations from CDC and OSHA guidelines in his work place is likely to have a better chance of refuting an employee's position that the job and not another unpredictable life event during a pandemic that was the source of infection.
An employer may also want to document their efforts to make the job safer. When and when it is important to leave no room to contest what the employer did or did not do to protect his workers.
Finally, federal and state legislative efforts are being made to protect employers against illicit acts, and the progress of those efforts should be closely monitored.
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All rights reserved.National Law Review, Volume X, number 134