Welcome
Daily Labor Report®

‘No Evidence’ of Virus Litigation Wave as Businesses Seek Shield

Jan. 4, 2021, 10:31 AM

The volume of lawsuits filed since the onset of the Covid-19 pandemic that allege workplace safety violations—including sickness and death from lack of protective equipment, social distancing, and limiting exposure—has been far less than the onslaught predicted by pro-business groups and some politicians.

Thanks to workers’ compensation laws, arbitration clauses, and existing steep bars to bringing negligence and recklessness claims, this type of litigation is unlikely to flood in, academics and advocates say.

“We haven’t really seen a lot these lawsuits. If they were to happen, to win, they’d have to prove that the behavior is egregious,” said Greg Keating, law professor at the University of Southern California.

Still, the drive for Congressional legislation shielding businesses from coronavirus-related liability briefly tied up negotiations over the $900 billion pandemic relief package and the Business Roundtable, an association of chief executive officers including Jeff Bezos of Amazon.com Inc. and Tim Cook of Apple Inc., are pressing Republicans to revisit the concept in the next Congress.

More than a dozen states have enacted such measures.

Bloomberg Law research found at least 37 cases alleging that employers created unsafe spaces and allowed Covid-19 to spread to workers, causing sickness or death. These included cases filed claiming retaliation when workers complained about safety. Several of those cases have been dismissed; some have been settled; and a few are scheduled for trial next year.

Law firms tracking such filings reported similar findings, and said they accounted for a small percentage of the total number of lawsuits filed related to the pandemic. Labor and employment firm Fisher Phillips found 37 wrongful death and negligence claims, as well as 65 unsafe workplace cases filed this year through to Dec. 23.

The firm says the wrongful death or negligence claims represented 2.9%, and unsafe workplaces represented roughly 5% of the more than 1,300 cases the firm surveyed related to the pandemic, including disability and leave claims, wage and hour, and discrimination.

Jackson Lewis, which is also tracking employment-related litigation, reported 16 class actions related to the workplace safety conditions sprung from the pandemic. Of these, 12 were filed in California. The firm reported just over 100 cases total that dealt with workplace safety.

‘Hurdles to Bringing Cases’

“There is no evidence of a flood of litigation against employers, and meanwhile there are many hurdles to bringing cases in court,” said Gaylynn Burroughs, senior policy counsel at The Leadership Conference for Civil & Human Rights.

Yet there are examples of lawsuits where employers have done little to protect their workers from the spread. Burroughs said those employers should be able to be held accountable—even if there are barriers in court. “Those cases that have been filed raise really important issues for worker safety,” she said.

In the past six months, federal judges—appointed by both Democratic and Republican presidents—have shot down attempts by workers and unions to sue for implementation of safety protections, often deferring to the federal Occupational Safety and Health Administration, which has thus far declined to do so.

To be sure, while roughly dozens of wrongful death and personal injury cases claiming coronavirus-related health and safety violations have been filed against retail giants including Walmart Inc. and Amazon, as well as meatpackers such as Tyson Foods Inc. and Quality Sausage Co., they’re merely a tiny percentage of the number of employment litigation cases filed across the U.S. this year related to the pandemic.

These types of cases were cited by business groups, who pushed for Congress to provide a liability shield for litigation related to the pandemic. Republicans have vowed to push for such a measure with the next stimulus package in 2021.

“When you have a national crisis, litigation usually follows,” said Harold Kim, president of the U.S. Chamber’s Institute for Legal Reform. “Congress knows there are liability concerns and has an awareness that we are a litigious country.”

A High Bar

Employees covered by workers’ compensation laws can bring separate personal-injury lawsuits in limited circumstances, such as where a worker is harmed by an employer’s willful misconduct or “gross” negligence—which are difficult to prove because they must prove intentional harm or conscious disregard.

Workers also face the barrier of proving that they contracted Covid-19 in the workplace, and not within their communities, said David Muraskin, an attorney with Public Justice who represents meatpacking workers. He said that the “mass exposure” to litigation Republican leaders warn about is “fear-mongering.”

The most common type of safety claims have been retaliation or failure to accommodate tied to safety, said Paul Hastings partner Jeffrey Webb, who practices employment law in Los Angeles.

“As for the flat out, ‘I got Covid because of the workplace,’ we aren’t seeing a lot of that,” Webb said, adding that as businesses return, the threat of litigation could become a real cost.

“Even if there are legal defenses to the claims, that doesn’t prevent people from filing them,” he said. “The cost of litigating could deter businesses from opening. It’s not frivolous to say there is a concern here.”

Litigation Trends

Kim maintains that untested theories promoted by the plaintiffs’ bar in ads encouraging workers to sue their employers could still spell a flood of litigation.

But workers attorneys have had only mixed success utilizing the “public nuisance” doctrine to bring Covid-19 lawsuits. These include cases against McDonald’s restaurants, Smithfield Foods, and Amazon.

Employees had early success in lawsuits against the fast food giant claiming that failing to protect them from the spread of the virus created a public nuisance, winning some relief in Illinois and California.

Lawsuits making similar allegations against the warehouses were dismissed on jurisdictional grounds.

A suit filed by a group of Amazon warehouse workers in New York, suing over alleged safety violations, was dismissed with U.S. District Judge Brian Cogan in Brooklyn concluding OSHA, not the court, was better suited to address the issue. The workers are appealing.

Smithfield Foods won a similar dismissal of a lawsuit brought by meatpacking workers, with a Missouri federal judge concluding OSHA and the U.S. Agriculture Department, properly had regulatory authority over coronavirus safety guidance at meat-processing plants.

He also cited the “significant steps” the company has taken to reduce the risk of a COVID-19 outbreak at the plant.

Immunity, OSHA Inaction

The Republican proposal to protect businesses from Covid-related lawsuits that briefly deadlocked pandemic relief stimulus talks would effectively curb lawsuits alleging gross negligence or willful misconduct by granting a safe harbor to businesses that follow government safety mandates.

The proposal wouldn’t give any businesses “absolute immunity,” said John Ho, chair of Cozen O’Connor’s OSHA practice in New York.

“Now that we’re nine or 10 months into this pandemic, everyone is aware of the new normal. I think attacking those businesses that’ve already suffered so much is not good for the country,” Ho said.

Lack of guidance from OSHA is also a barrier for workers bringing lawsuits, said Heidi Shierholz, senior economist and policy director at the Economic Policy Institute.

While the agency has the authority to implement an emergency temporary standard to protect health and safety, OSHA has cited hundreds of companies for alleged Covid-19 safety violations largely under respiratory rule violations and the general duty clause, which requires companies to keep workplaces free from hazards.

“Giving businesses total immunity will create more unsafe workplaces,” she said, noting that corporations would have extremely limited financial incentive to keep workers safe. “I don’t expect an avalanche of lawsuits, but it will strip workers of their chance to keep their workplace safe during a pandemic.”

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.