S.B. Asked: Can Employers be Sued for Wrongful Death Caused by Workplace Exposure to COVID-19?

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On September 26, 2022, S.B. Asked:

“My spouse worked for an employer who failed to provide workers with proper PPE. Because he was not provided with proper safety equipment, my spouse was exposed to COVID-19 at work and died. Can I sue his employer for wrongful death?”

Answer:

Employers are not typically responsible for damages that arise from accidental workplace injuries because workers’ compensation programs provide the exclusive remedy for employees’ personal injury claims. If a workplace injury results in an employee’s death, Workers’ compensation programs typically feature a separate death benefit that is paid to the victim’s estate. While workers’ compensation programs preclude most personal injury claims against employers, many states allow these claims to proceed when the injuries resulted from the employer’s intentionally harmful behavior. For example, Connecticut permits employees to pursue claims for personal injuries by proving that their employer intended to cause the injury or that the employer intentionally created a dangerous condition that made the plaintiff’s injuries “substantially certain to occur.” Similarly, North Carolina allows claims for personal injuries to proceed where the employer “intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct.” These types of situations can give rise to a wrongful death claim against an employer, however, the decedent’s estate will need to prove additional elements for a claim to be successful.  

Wrongful death occurs when a person dies as a result of someone else’s negligence or misconduct. A valid wrongful death claim has four elements:

  • A death caused by another person’s careless, reckless, or negligent actions;
  • A breach of the duty owed by the responsible party to the victim;
  • Causation between the responsible party’s actions and the victim’s death; and
  • Quantifiable damages, such as medical expenses, burial costs, and loss of income.

A decedent’s estate would need to satisfy each of these elements to successfully bring a claim against the responsible employer for wrongful death. An employer’s failure to provide safety equipment to employees, choosing not to implement workplace safety measures required by regulation, and failing to take reasonable steps to limit transmission of COVID-19 in the workplace can represent negligence or intentionally harmful conduct. However, many states have enacted laws to limit employers’ civil liability for personal injuries related to COVID-19 during the coronavirus pandemic. These laws are referred to as “COVID-19 liability shield laws.”

Most COVID-19 liability shield laws protect businesses against personal injury claims, while others also protect individuals. Many of these laws will automatically expire unless they are renewed by each state’s legislature. For example, Ohio’s law expired on September 30, 2021, and it has not been renewed. While some of them may expire, these laws will likely prevent plaintiffs from pursing claims for events that took place while the laws were in effect.

COVID-19 liability shield laws generally fall into three categories:

The first group is the most restrictive. These laws and only permit claims where the defendant knowingly exposed the victim to COVID-19. For example, South Dakota’s law prevents plaintiffs from bringing a civil claim “alleging exposure or potential exposure to COVID-19 unless the exposure results in a COVID-19 diagnosis.” Additionally, the “exposure must be the result of intentional exposure with the intent to transmit COVID-19.” In South Dakota, a plaintiff would need to establish that the exposure was intentional with clear and convincing evidence, which would be challenging to satisfy except in the most extraordinary circumstances. S.D. Codified Laws Sec. 21-68-2.

The second group of COVID-19 liability shield laws is moderately restrictive. These represent the most common COVID-19 liability shield laws. In these states, plaintiffs cannot pursue personal injury claims related to COVID-19 unless the illness resulted from the defendant’s misconduct. For example, Wisconsin’s COVID-19 liability shield law precludes personal injury lawsuits related to COVID-19 except when the exposure to COVID-19 was the result of “reckless or wanton conduct or intentional misconduct.” Wis. Stat. Sec. 895.476. Texas expanded further upon this by prohibiting claims unless the responsible party was informed of the unsafe condition and then failed to warn others or remediate the condition. Tex. Civ. Prac. & Rem. Code Sec. 148.003.

The third group of COVID-19 liability shield laws are restricted to specific organizations. For example, Florida’s law restricts suits against healthcare providers and facilities except for injuries caused by their gross negligence or intentional misconduct. Fla. Stat. Sec. 768.381. These laws are the most limited in scope, while being carefully crafted to protect a specific class of actors, such as health care professionals and first responders.

Recent developments regarding state COVID-19 liability shield laws can be found on the National Conference of State Legislatures’ State Action on Coronavirus database.

An employer’s conduct will be closely scrutinized if it results in a workplace injury or death. Most claims for workplace injuries and deaths related to COVID-19 will be handled by state workers’ compensation programs. The degree to which an employer can be held liable for such injuries depends on the laws that specific jurisdiction enacted in response to the coronavirus pandemic, the type of business that the employer is engaged in, and the severity of the employer’s willful, negligent, or reckless misconduct. Wrongful death claims against employers that arise from exposure to workplace exposure to COVID-19 can proceed in some situations, but the integrity of such claims is reliant on the facts specific to each circumstance.

L.B. Asked: Does Workers’ Compensation Cover Long COVID?

“I was exposed to COVID-19 at work several months ago. Because I only experienced mild symptoms, I didn’t file a workers’ compensation claim. I have recently started experiencing symptoms of long COVID, including chronic fatigue and cognitive impairment, and I am not unable to work. Can I file a workers’ compensation claim?”

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