Families of workers who died of Covid-19 are suing businesses for allegedly failing to protect their employees from the virus, fueling ongoing calls from Republican lawmakers to shield employers from liability during the pandemic.
Attorneys say these suits are an attempt to bypass state workers’ compensation systems, which provide lower-cost remedies like cash and medical benefits when a worker gets injured or killed on the job.
The systems don’t allow workers or their families to sue unless they can show gross negligence or wanton and willful misconduct by an employer. The families who have filed Covid-19 wrongful death suits say their cases rise to that level because companies required employees to work during the outbreak without appropriate safeguards.
And while Congress contemplates the next coronavirus aid package, businesses reopen, and workers return to their jobs, state and federal Republican lawmakers are calling for some level of immunity from liability for businesses in coronavirus-related litigation, which include wrongful death lawsuits.
Meanwhile, North Carolina, Ohio, and Wyoming already have passed some variation of state immunity measures as business interests hope for a federal law to pass.
At least 14 wrongful death lawsuits tied to the pandemic have been filed as of mid-June, according to a search of Bloomberg Law’s database of court dockets. The cases are largely in state courts, given that state law governs most tort claims. As more of these suits are filed, plaintiffs’ attorneys worry that the federal government could extend liability protections to companies that already have been sued.
“It is entirely conceivable that federal action could immunize employers or companies even from liability of these lawsuits,” said Mike Duff, a workers’ compensation professor at the University of Wyoming, who added that state and federal immunity laws could create access to justice and constitutionality issues as the government limits the ways workers can petition their grievances against companies in the courts.
Bypassing Workers’ Comp
Robert J. O’Hara, an employment attorney at Epstein Becker & Green P.C. in New York, said the legal burden is high for plaintiffs who want to bypass the workers’ compensation system and sue for wrongful death under gross negligence and other theories.
The biggest challenge for pursuing Covid-related wrongful death cases is whether or not the deceased employee contracted the virus on the job, O’Hara said. “The first piece of analysis is whether it’s work-related.”
The Occupational Safety and Health Administration announced in May that employers who are required to keep OSHA injury and illness logs must determine if workers’ Covid-19 cases are job-related. Previously, OSHA said only health-care employers, corrections facilities, and emergency-response providers were required to make that determination.
Despite the challenges, wrongful death lawsuits are cropping up.
Enock Benjamin‘s family in May filed a lawsuit against JBS NA—the world’s largest meat processor—for negligent and reckless actions leading to Benjamin’s death on April 3. They said the company “elected to pursue profits over safety during a global pandemic.” Benjamin worked at JBS’s Souderton, Pa., beef production plant.
Benjamin’s family says the company’s “representation that it was safe for workers to arrive for their shifts at the JBS Souderton Plant was false. This misrepresentation was made intentionally and knowingly.”
Benjamin died four days after the plant closed its doors when workers showed symptoms of Covid-19. The suit said the plant didn’t give Benjamin adequate personal protective equipment and didn’t follow Centers for Disease Control and Prevention guidelines in its operations.
Nikki Richardson, a representative from JBS, didn’t reply to requests for comment about the lawsuit.
Shayan Elahi with the Law Offices of Shayan Elahi represents the family of Hugo Dominguez, a meatpacking worker who died because of the novel coronavirus. They brought a wrongful death lawsuit in a Texas state court against Dallas-based Quality Sausage Co.
Blanca Esther Parra brought the suit May 4 after her common-law husband Hugo Dominguez died of the virus on April 25. OSHA opened an inspection of the incident on April 27.
Even though it’s difficult for a worker’s family to sue a company for negligence when someone dies on the job, “it’s important to preserve a family’s right when it’s the most egregious cases,” said Debbie Berkowitz, worker health and safety program director with the National Employment Law Project.
Teetering on Uncertainty
Companies fear the ramifications of lawsuits as Covid-19 ravages the economy and businesses are already teetering on uncertainty. About 53% of small-business executives, for example, have voiced concerns about increased liability risks while operating during the pandemic, according to research by the Society of Human Resources Management.
“We don’t want courts making decisions in a fast-moving environment” with different opinions likely to come down from judges across the country, said Angelo Amador, senior vice president of legal advocacy and regulatory counsel for the National Restaurant Association. The organization would rather see local health organizations and OSHA issue citations and recommendations than allow private litigation to continue, Amador said.
He’s also executive director of the Restaurant Law Center, an incorporated public policy law firm affiliated with the National Restaurant Association.
“Litigation is expensive. Many restaurants are closed,” Amador said. “They can survive an inspection from OSHA or the department of health, but not all of them can survive expensive litigation. We want this liability threshold increased in order to stop lawsuits before they even happen.”
But Remington A. Gregg, counsel for civil justice and consumer rights at Public Citizen, told Bloomberg Law that states and Congress granting businesses immunity from Covid-related lawsuits, coupled with the Trump administration’s deregulatory agenda, “will make it impossible to hold companies accountable” for poor coronavirus protections.
States Passing Laws in Wait
Stephanie Martz, the National Retail Federation’s chief administrative officer and general counsel, said a carefully drawn, federal solution for liability protections for business is the preferred avenue, but state laws are being viewed by the business community as “very helpful.”
Utah enacted a law in May that makes property owners and business owners immune from lawsuits brought by people exposed to Covid-19. However, it doesn’t cover immunity in cases of willful misconduct, reckless infliction of harm, or intentional infliction of harm.
Other states are moving quickly to follow suit.
Ohio’s House passed a bill May 28 providing immunity to health care providers, the state, and the public and business community. The immunity is set to last from March 9, 2020, the date of the emergency declaration, through Dec. 31, 2020. The state senate has yet to take the bill up.
Lobbying for Retroactive Protection
Businesses are also hoping the influx of personal injury and wrongful death lawsuits could be curbed with legislation that extends liability protections back in time to when the coronavirus pandemic began.
Lobbyists are calling on Congress to adopt this type of “retroactivity” a clause as part of the larger Covid-related legislation Senate Republicans believe can be finalized by mid-to-late July.
For the U.S. Chamber of Commerce, a workable and “tailored” approach includes a retroactivity clause going back to at least December 2019, according to Harold Kim, president of the U.S. Chamber Institute for Legal Reform.
“The idea would be this would cover pending claims,” Kim said on a press call with reporters in May.
O’Hara said he predicts more litigation as businesses contemplate reopening. “People are not even back to work yet, and we know things will heat up again.”