Employers Seek Liability Shield From COVID-19 Worker Suits

By Joyce Hanson
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Law360 (April 17, 2020, 7:09 PM EDT) -- Pro-business groups are urging Congress to give companies legal immunity from negligence lawsuits lodged by front-line workers who get COVID-19, but personal injury lawyers and worker rights groups say they won't back down from their fight to protect employees during the pandemic.

The U.S. Chamber of Commerce and a coalition of about 20 conservative groups have spoken out against such suits in the past week, saying businesses could go bankrupt or be hampered from a successful return to commerce if they face heavy liability costs due to the pandemic and related revenue disruptions.

Chamber President Suzanne Clark warned members in a lengthy memo on April 13 that a high volume of lawsuits from workers exposed to the coronavirus is "the largest area of concern" for U.S. businesses, as exposure liability encompasses multiple types of claims that employees might bring against "essential" companies, as well as large swaths of the economy, when businesses reopen.

"The legal theories underlying these claims may range from simple negligence to strict liability to public nuisance, which the plaintiffs' bar could try to pursue through contingency fee arrangements with cash-strapped states and municipalities," Clark said. "Depending on the legal theory underlying the claim, proving causation may be a challenge for plaintiffs. If enough claims are brought, the scope and magnitude of the litigation still may exert enough pressure to threaten businesses or industries with bankruptcy."

Clark said governments should look into reforming federal, state and local laws, suggesting that channeling some types of claims into federal court rather than allowing them to remain in state courts could help protect companies. She added that prohibitions on public nuisance claims could be useful to business interests.

But Michael A. Winkleman, a Lipcon Margulies Alsina & Winkleman PA cruise ship personal injury lawyer representing a Celebrity Cruises crew member who contracted COVID-19 while working on a ship off the coast of France, told Law360 on Friday that liability claims can be the only way for employees to seek relief if their companies fail to respond to their concerns.

The "good news" for his client is that it's highly unlikely the Celebrity Cruises case litigated under maritime law will be affected by efforts to change liability law, Winkleman said. And as for land-based U.S. workers' coronavirus liability suits, he asserted, it would be "absurd" to give companies any type of blanket protection against coronavirus-related claims.

"We have this incredible U.S. legal system that allows workers to make claims," Winkleman said. "Why give companies a get out of jail card?"

Meanwhile, about 20 conservative groups signed a letter on Wednesday to Senate Majority Leader Mitch McConnell, R-Ky., and House Speaker Nancy Pelosi, D-Calif., saying that greedy trial lawyers are looking to line their pockets with COVID-19 related suits and urging Congress members to put such "exploitation" of the public health crisis into check.

"Because of the looming threat posed by the trial lawyers' tort agendas, doctors and health care professionals remain fearful of making the tough health care decisions that are needed to respond to this pandemic; hospitals, nursing homes, and assisted living facilities are afraid that the care delivered in unprecedented circumstances will be second-guessed; manufacturers are hesitant to produce essential products; and transportation companies are risking their very existence to keep America supplied," the letter said.

Grover Norquist of Americans for Tax Reform, Brent Gardner of the Koch brothers-funded Americans for Prosperity and Judson Phillips of the Tea Party Nation signed the letter.

Despite these litigation reform efforts, workers are beginning to file COVID-19 claims and speak out against employers in a wave of strikes and walk-offs that are expected to persist through the pandemic.

McDonald's workers in Chicago filed a complaint on Tuesday with the federal Occupational Safety and Health Administration citing "serious and imminent hazards" after a co-worker tested positive for the coronavirus, then walked out on strike the following day.

The workers say in the OSHA complaint that they will be "disciplined or fired" if they stay home, and that McDonald's response is putting their health and customers' health at risk.

"The conditions in our store pose an imminent danger to our health and that of our coworkers," according to the complaint. "The managers did not inform all the workers who were in the store during that week and might have had either direct or indirect contact with the sick worker. And the company has not done any additional sanitizing of the store beyond the usual daily cleanup after the company found out about the worker with COVID."

--Additional reporting by Carolina Bolado. Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.

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