ALERT:  Balancing Risk and Business Needs During COVID-19

September 4, 2020

As the COVID-19 pandemic continues, more wrongful death actions are being filed against businesses and other employers for their alleged failure to protect their employees from COVID-19 exposure. While the majority of these COVID-19 exposure lawsuits are being filed by employees, it is likely that these lawsuits will increasingly also be asserted by third parties, like customers. Now, more than ever, it is essential for businesses to stay on top of the ever-changing COVID-19 guidance provided by government entities and to implement safe, practical and up-to-date COVID-19 policies. 

So, what do employers need to know?

Failure to implement and enforce policies and procedures regarding necessary safety precautions, such as mask-wearing, social distancing, and employee quarantines, may lead to liability. In New Jersey, the wife of a deceased employee who was working as a power rail mechanic filed a complaint alleging wrongful death premised on the employer’s alleged ineffective and ignored COVID-19 policies. The now-deceased employee allegedly contracted COVID-19 after interacting with another employee, who later tested positive for COVID-19. The decedent was not wearing a mask after following the employer’s instructions to not wear one unless he was performing his specific job function. After being hospitalized for several weeks, the employee eventually passed in what the complaint describes as a “horrible death”.

The complaint against the employer alleges, among other things, that the employer failed to implement policies for: maintaining a safe work place with the use of masks, PPE, social distancing and proper cleaning; properly training employees; providing adequate testing of employees; and for failing to adequately follow its own safety procedures.

For more information on this case, see Elijah v. Port Authority Trans-Hudson Corporation, Docket Number: L-002137-20 (Superior Court of NJ, Hudson County, Law Division).

Implementing a COVID-19 policy is not enough, policies need to comply with governmental COVID-19 directives. In Ohio, the wife of a deceased employee who was working as a nurse in a mental health facility filed a lawsuit alleging wrongful death under Ohio law. The complaint alleges that the employer was negligent because of its failure to implement a safety policy that followed the COVID-19 directives issued by the state of Ohio.

While state workers’ compensation laws will likely come into play when the alleged exposure occurred in the workplace, plaintiffs may be able to artfully plead around the applicability of those laws.

For more information on this case, see Lanzo v. Generations Behavioral Health, Docket Number: 2020-CV-00677 (Court of Common Pleas Trumbull County, OH).

Continuing to operate without having adequate policies and procedures after an employee contracts COVID-19, may lead to liability. In Louisiana, the wife of a deceased employee who was working as a crew member on a supply vessel has alleged negligence by the employer. After the captain reportedly fell ill onboard, he “quarantined” himself in his quarters for several days before being removed from the vessel and tested for COVID-19. After his test results came back positive, the now deceased employee returned home and isolated before finally succumbing to the virus.

In this case, the plaintiff alleges the employer was negligent for its failure to provide a safe workplace, particularly with regard to its handling of another employee’s suspected illness, with regard to training, what to do once an employee contracts the virus, and for a lack of restrictions applicable to employees who travel to known COVID-19 hotspots.

For more information on this case, see Norwood v. Rodi Marine LLC et al, Docket Number: 2:2020cv1404 (US District Court for the Eastern District of Louisiana).

So, what can employers do to protect themselves?

These cases demonstrate that employers who take reasonable measures, in accordance with up-to-date local, state and federal guidelines to prevent the spread of COVID-19 in the workplace, are far better protected from liability. Businesses and other workplaces should implement policies and procedures to address issues like cleaning and disinfecting the premises, providing adequate safety gear, educating employees and customers, informing employees about confirmed cases in the workplace, and ensuring compliance with these safety rules. 

Keeping abreast of the law and guidance pertaining to COVID-19 and consulting with legal counsel on these issues can help ensure that your COVID-19 policies and procedures protect your business from liability.

If you need assistance developing COVID-19 health and safety policies and procedures, or other labor and employment issues prompted by the pandemic, please contact Danielle Goebel, Katharine Hartman, or Marjorie Obod.

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