Law360 (April 24, 2020, 6:03 PM EDT) --
In reacting to the pandemic, employers have had little time to consider the wide-ranging legal ramifications of their various decisions about employee health and safety, and other employment issues. Consequently, employers can expect significant scrutiny of their response to the pandemic, which will likely lead to a substantial number of employment-related lawsuits.
Employers may, understandably, think that employees claiming injury or illness due to COVID-19 exposure at work would have to bring such claims through the workers' compensation system. However, the Evans v. Walmart litigation shows that attorneys may attempt to bypass the workers' compensation system in an effort to access greater damages awards and take advantage of other legal strategies that are not available in a typical workers' compensation setting.
This article provides guidance for employers on how to avoid similar lawsuits going forward. This article will first provide a brief overview of the current guidelines from the Occupational Safety and Health Administration, or OSHA, and the Centers for Disease Control and Prevention regarding employers' responsibilities to protect employee health and safety.
The article will then briefly discuss the Evans case and the allegations that Walmart failed to appropriately respond to the pandemic and protect its employees from exposure to COVID-19. Finally, the article will discuss claimants' strategic reasons to bypass the workers' compensation system and take their claims directly to a court of law, and how employers can best prepare themselves when this occurs.
OSHA and CDC Employee Protection Guidelines
Workplace safety standards are primarily governed at the federal level by OSHA. Under OSHA's general duty clause, employers are required to furnish "employment and a place of employment ... free from recognized hazards ... likely to cause death or serious physical harm."
OSHA's personal protective equipment, or PPE, standard requires that employers provide PPE "for [the] eyes, face, [and] head" including "protective clothing, respiratory devices, and protective shields." Employers are required to provide PPE "wherever it is necessary by reason of hazards of ... environment ... encountered in a manner capable of causing injury or impairment ... through absorption, inhalation or physical contact." In addition, if employees provide their own PPE in such circumstances, the employer is responsible "to assure its adequacy, including proper maintenance, and sanitation of such equipment."
OSHA has provided initial COVID-19 guidelines. However, the legal landscape is developing rapidly, and employers are often required to figure out on their own how COVID-19 impacts their responsibility to protect the health and safety of employees.
In addition to OSHA, the CDC has issued guidance to employers regarding how to clean and disinfect the workplace. For example, the CDC recommends that employers clean hard surfaces with "detergent or soap and water" and then using "EPA-registered household disinfectants." The CDC also has recommended guidelines for cleaning clothing, electronics and soft surfaces.
Evans v. Walmart
In Evans, the estate of a former Walmart employee, Wando Evans, sued Walmart after Evans "passed away due to complications of COVID-19" on March 25. The factual allegations in the complaint are fairly limited. The complaint alleges that Evans was an employee at a Walmart Supercenter located in Evergreen Park, Illinois. The complaint further alleges that Evans, along with another employee, Phillip Thomas, "contracted COVID-19" at the store.
According to the complaint, store management was aware that several employees were exhibiting symptoms consistent with COVID-19, but they did little to protect employees from exposure. Thomas, who is not a party to the litigation, passed away on March 29 "due to complications of COVID-19."
Evans' estate sued Walmart for negligence, willful and wanton misconduct, survival action and violations of the Illinois Family Expense Statute. The heart of the allegations is that Walmart failed to exercise reasonable care in "keeping the store in a safe and healthy environment and, in particular, to protect employees, customers and other individuals within the store from contracting COVID-19." Evans further alleges that Walmart "knew or should have known that individuals at the store were at a very high risk of infection and exposure" due to high volumes of customer traffic.
Specifically, Evans alleges that Walmart (1) failed to clean and sterilize the store; (2) failed to implement, promote and enforce social distancing guidelines as required by federal and statement government; (3) failed to provide proper PPE to employees; (4) failed to warn Evans that other employees at the store were exhibiting COVID-19 symptoms; (5) ignored employees who communicated to management that they were experiencing COVID-19 symptoms; (6) failed to follow OSHA and CDC guidelines to protect employees; and (7) failed to train employees to implement and follow employee health and safety protection guidelines.
Strategic Reasons to Bypass the Workers' Compensation System
Employees who are injured or fall ill because of unintentional accidents or exposure at work are generally required to bring their claims through the workers' compensation insurance program. However, workers' compensation may not provide coverage when the employer intentionally or willfully injures or exposes the employee to harmful substances.
Another feature of workers' compensation insurance is that the monetary recovery is capped by statute. For example, in New York state, workers' compensation claims for a deceased employee are generally capped at an amount determined by the employee's wages at the time of death and whether he or she has surviving dependents. However, the payments may not exceed a statutory maximum.
In addition to statutory caps on damages, as a practical matter, it is common for employers to have general litigation insurance policies that cover the cost of adjudicating employment-related lawsuits. However, many litigation insurance policies will not cover workers' compensation claims. By bringing a wrongful death action in court, COVID-19 claims against employers are more likely to fall within litigation insurance policy coverage, which could lead to quicker settlements for larger amounts of damages.
Moreover, workers' compensation claims are not adjudicated in the presence of a jury. Instead, these claims are usually heard by an administrative law judge. Employees seeking restitution from employers for death or injury based on exposure to COVID-19, may prefer to have their cases heard by a jury. In many cases, plaintiffs attorneys prefer juries because they believe individual citizens are more likely to be sympathetic to the employee rather than the employer, who may be a large out-of-state corporation.
Finally, given the dominance of COVID-19 coverage in the national and international media attorneys may seek to use media coverage to their advantage. Attorneys may believe that employers seeking to avoid the negative publicity surrounding an employees' allegations that the employer failed to provide adequate protection for COVID-19 exposure are more likely to settle lawsuits quickly.
Guidance for Employers
Employers should take proactive measures to follow the existing guidance from OSHA, the CDC and any relevant state agencies for protecting employees from exposure to COVID-19. As the Evans case shows, employees who do not take immediate action when an employee is exhibiting COVID-19 symptoms are exposing themselves to potential wrongful death claims. If an employee exhibits COVID-19 symptoms, the employer should quarantine the employee, identify other employees who had contact with the infected employee, inform such employees that they may have been infected and send any COVID-19 positive employees home until cleared by a medical professional.
Employers should also be transparent with their employees including educating employees of the symptoms of COVID-19 and encouraging them to seek medical attention if they believe they are exhibiting symptoms. If an employer does have employees who are quarantined because they are exhibiting symptoms or have tested positive, reach out to them frequently to check on their well-being. Employers who actively engage with their employees and are genuinely concerned about their health are less likely to be sued. If an employee does pass away due to COVID-19, reach out to the employee's family to express your condolences.
If an employer is sued by an employee on a wrongful death claim related to COVID-19, the employer may be able to dismiss the suit before trial. For example, the employer may be able to argue that their state workers' compensation statute is the exclusive remedy, and the common law claims are therefore invalid. Employers may also be able to dismiss the suit if they can show that they took adequate safety measures, and consequently they were not legally responsible for the employee's exposure to COVID-19. Similarly, the employer could argue that it was the employee's failure to follow the employers' safety procedures that caused the employee to contract COVID-19 rather than action or inaction on the part of the employer.
Clarification: This article has been updated to clarify the scope of workers' compensation coverage for negligent conduct.
Christopher R. Dyess is an associate at Schlam Stone & Dolan LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Complaint, Evans v. Walmart, Inc., et al., Case No. 2020L003938 (Ill. Cir. Ct. filed April 6, 2020).
 Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1).
 29 CFR 1910.132(a).
 29 CFR 1910.132(b).
 Centers for Disease Control, Cleaning and Disinfection for Community Facilities, available at https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html.
 Evans v. Walmart, Inc., et al., Case No. 2020L003938 (Ill. Cir. Ct. filed April 6, 2020), Complaint at 1.
 Id. at 2.
 Id. at 3-10.
 Id. at 3.
 Id. at 3-4.
 NY WCL § 16, et seq.
 See, e.g., NY WCL § 11 (noting that an employer's liability to an injured employee under workers' compensation is "exclusive and in place of any other liability whatsoever"); Great N. Ins. Co. v. N. Gen. Servs. of Massachusetts , 2001 WL 1526952, at *4 (Mass. Super. Oct. 1, 2001) (noting that "if [the deceased employee] was injured during the course of his employment, then his estate's wrongful death action is barred by the exclusivity provision of the Workers' Compensation Act"); Duche v. Star Recycling , 261 A.D.2d 503, 503, (2d Dept 1999). (noting that the "complaint was properly dismissed as the plaintiffs cannot maintain an action against the employer or fellow employee of the plaintiffs' decedent for the death that arose out of and in the course of the decedent's employment).
 See, e.g., Howarth v. M & H Ventures, LLC , 237 So. 3d 107, 111 (Miss. 2017) (finding that the decedent in a wrongful death action could not recover any damages because the decedent was responsible for his own conduct and "damages are reduced in proportion to the decedent's own negligence"); Warren v. Sabine Towing & Transp. Co. , 2001-0573 (La. App. 3 Cir. 10/30/02) (noting that under Louisiana law "the degree or percentage of fault ofall personscausing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty").
For a reprint of this article, please contact firstname.lastname@example.org.