COVID-19 Litigation is in Full Swing: Here's How to Best Shield Your Business

Melissa Hazell Davis
Article

As Congress continues to debate legislation that would shield employers and businesses from lawsuits brought by employees and customers who believe they contracted COVID-19 on the job or at a business, the number of lawsuits against employers brought by employees (or their estates) related to contracting COVID-19 while at work is growing.  While employees are typically constrained as to the type of claims they can make against their employers for workplace-related injuries and/or death, each month additional suits are filed against employers - especially by those employees who were deemed essential and required to work during stay-at-home orders.

By the end of July, 4,000 federal employees sought disability compensation on the grounds that they contracted COVID-19 at work, and the estates of 60 deceased employees sought death benefits, although these numbers are expected to rise. In addition to increased workers' compensation claims, families of essential workers have sued large companies like Walmart, Safeway, Tyson Foods, and several health-care facilities for gross-negligence or wrongful death, arguing that the employers failed to adequately protect workers against contracting the virus.

In one notable case, the family of a deceased plant worker who died from COVID-19 sued the poultry processor Pilgrim's Pride for wrongful death in Texas.  In a novel move, Pilgrim's Pride asked to move the case to federal court - not on - but on the grounds that the claims involve a federal question, specifically that the employers were forced to stay open due to an executive order by President Trump. The company, allegedly relying on the President's executive order in April compelling meatpackers to remain open, claims that federal court is the proper place for the lawsuit brought by the deceased worker's family to be heard (not to mention that federal court has the perception of being a tougher venue for tort plaintiffs). JBS S.A., the world's largest meatpacking processor, made a similar attempt to remove a wrongful death case brought by the family of a meat processing worker in Pennsylvania to federal court.

Despite the litigation hurdles plaintiffs face against large and powerful entities, it becomes clearer each day that employers need to be as aggressive and consistent as possible in following OSHA and CDC COVID-19 guidelines to ensure workplace and consumer safety and minimize legal exposure.  These best practices will help protect your business and employees from COVID-19-related risks:

    • Employers should monitor public health communications about COVID-19 recommendations, ensure that workers have access to that information, and collaborate with workers to designate effective means of communicating important COVID-19 information.

    • In workplaces where exposure to COVID-19 occurs, prompt identification and isolation of potentially infectious individuals is a critical first step in protecting workers, visitors, and others at the worksite.

    • Immediately isolate individuals suspected of having COVID-19 by moving potentially infectious individuals to isolation rooms and removing those isolated individuals from the worksite as soon as possible.

    • Train all workers with reasonably anticipated occupational exposure to COVID-19 on how to isolate individuals with suspected or confirmed COVID-19 or other infectious diseases, and how to report possible cases. Training must be offered during scheduled work times and at no cost to the employee.

    • Employers operating workplaces during the COVID-19 pandemic should continue routine cleaning and other housekeeping practices in any facilities that remain open to workers or others. Employers should clean and disinfect potentially contaminated environments using EPA-registered disinfectants that are labeled as effective against the virus.

Establishing that all guidelines as prescribed by OSHA and the CDC (as well as any applicable state, local, or federal mandates) were followed will go a long way in not only keeping employees safe and businesses afloat but will also help employers defend against these claims should they arise.