Editor's Note: With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated.
In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file a lawsuit (getting around the “exclusivity bar”), as illustrated by a recently filed wrongful death case in Illinois, Evans v. Walmart. In this case, plaintiffs argue that two Walmart employees, Wando Evans and Phillip Thomas, passed away due to complications from COVID-19 contracted while working for the big box retailer.
Duff’s post suggests such a case may proceed on grounds that Illinois’ workers’ compensation statute allows an exception from the exclusivity bar when the employer’s conduct was intentional, or “willful and wanton.” Duff suspects that as cases of COVID-19 continue to rise among essential workers, there will likely be more cases like Evans v. Walmart in other states with similar exceptions to Illinois’ written into their workers’ compensation statutes. Additionally, Duff suggests workers may be able to proceed in court against an employer if the state’s workers’ compensation statute categorically excludes certain diseases such as COVID-19. Duff's full post follows.
-- Katie Tracy
Reprinted by permission of the Workers’ Compensation Law Prof Blog.
It is elementary that workers' compensation is the quid pro quo for a tort claim. One consequence of this principle is that where a state's workers' compensation law categorically excludes certain claims from coverage, there is a non-frivolous argument that a tort cause of action must be revived for the injured worker or for his or her decedent.
Another wrinkle has to do with intentional conduct because the original quid pro quo seemed to presume employer tort immunity only for accidental work-related injuries (think "injury by accident"). Obviously, to be able to bring a tort claim does not mean that one will win the claim. But, as a practical matter, if a plaintiff survives summary judgment, no employer or carrier will want to be before a jury in an emotionally hyper-charged case. And it is possible that the universe of COVID-19 would provide such cases.
Take the case of Evans v. Walmart, filed in the Circuit Court of Cook County, Illinois, on April 6. Wando Evans and Phillip Thomas passed away during the last week of March, allegedly from COVID-19 complications. Evans' estate has alleged a litany of tortious conduct under a wrongful death theory. From the complaint:
Walmart violated the duty of care and was negligent in failing to: cleanse and sterilize the store in order to prevent infection of COVID-19; implement, promote and enforce social distancing guidelines promulgated by the governments of the United States of America and the State of Illinois; provide the Decedent and other employees with personal protective equipment such as masks, latex gloves and other devices designed to prevent the infection of COVID-19; warn the Decedent and other employees that various individuals were experiencing symptoms at the store and may have been infected by COVD-19 which was present and active within the store; adequately address and otherwise ignored other employees at the store who communicated to management that they were experiencing signs and symptoms of COVID-19; follow the recommendations and descriptions of mandatory safety and health standards promulgated by the United States Department of Labor and the Occupational Health and Safety Administration as set out in Guidance on Preparing Workplaces for COVID-19; follow the guidelines promulgated by the Center for Disease Control and Prevention ("CDC") to keep its workplace in a safe and healthy condition and to prevent employees and others within the store from contracting COVID-19; develop an Infectious Disease Preparedness and Response Plan as is recommended by the CDC; prepare or implement basic infection prevention measures as is recommended by the CDC; conduct periodic inspections of the condition and cleanliness of the store to prevent and/or minimize the risk of employees and others from contracting COVID-19 as is recommended by the CDC; provide employees with antibacterial soaps, antibacterial wipes and other cleaning agents as is recommended by the CDC; develop policies and procedures for prompt identification and isolation of sick people as is recommended by the CDC; develop, implement and communicate to its employees about workplace flexibilities and protections as is recommended by the CDC; implement engineering controls designed to prevent COVID-19 infection including, but not limited to, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as clear plastic sneeze guards as is recommended by the CDC; cease operations of the store and to otherwise close the store when it knew or should have known that various employees and others present at the store were experiencing symptoms of COVID-19; properly train its personnel to implement and follow procedures designed to minimize the risk of contracting COVID-19; periodically interview and/or evaluate its employees for signs and symptoms of COVID-19; prohibit employees who were exhibiting signs and symptoms of COVID-19 from working at the store or otherwise entering the premises; and hired employees via telephone and other remote means in an expedited process without personally interviewing or evaluating whether prospective employees had been exhibiting signs and symptoms of the COVID-19 prior to the commencement of their employment.
The problem, of course, is that it is not immediately evident why the conduct alleged is not covered by the exclusive remedy rule. Perhaps the gambit is to plead the conduct as "willful and wanton," as the complaint does, in an effort to take it out of workers' compensation coverage (and thereby exclusivity). In Illinois, it appears that intentional conduct is not subject to the workers' compensation's exclusive remedy. See Toothman v. Hardee's Food Sys., Inc., 304 Ill.App.3d 521, 529 (Ill.App.1999). I'm not an Illinois lawyer, so I have no idea whether this is a good strategy. What I do suspect is that cases of this type will arise in any state in which the exclusivity bar does not apply to intentional conduct. (Roughly half of all states have some kind of exception to exclusive remedy for intentional, "deliberately intentional," assaultive conduct, and the like). The cases could become especially pitched should employers require formerly quarantined employees to return to work in the absence of a crystal-clear "all clear" from governmental authorities. Assuming causation were established, injuries arising from those kinds of scenarios would strike me as highly viable in tort.
Returning to the possibility that a statute may categorically exclude or not cover certain diseases — for example, so called "ordinary diseases of life" — I would anticipate some lawyers may argue that the absolute exclusion from coverage of a disease such as COVID-19 (as opposed to coverage a claimant may not think adequate) should permit a tort cause of action under state constitutional right to remedy provisions. In Wyoming, for example, the statute categorically excludes coverage of work-related "mental injuries" (except, now, in the case of first responders), and courts have allowed tort actions even where the alleged mental injury arose out of and in the course of employment. See Collins v. COP Wyoming (2016) as an example.
A variety of such cases may prove challenging for courts.
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Michael C. Duff | April 21, 2020
With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated. In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file a lawsuit (getting around the “exclusivity bar”), as illustrated by a recently filed wrongful death case in Illinois, Evans v. Walmart. In this case, plaintiffs argue that two Walmart employees, Wando Evans and Phillip Thomas, passed away due to complications from COVID-19 contracted while working for the big box retailer.
Katie Tracy | April 20, 2020
As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed. Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts.
Matthew Freeman | April 17, 2020
On April 14, CPR's James Goodwin took part in a virtual hearing, hosted by the Union of Concerned Scientists, on the EPA's "censored science" rule, an effort by EPA to exclude from its rulemaking process a range of scientific studies that industry finds uncongenial to its anti-regulatory views. In his testimony, Goodwin dismantles EPA's contention that the rule is grounded in law, observing that there are no credible legal underpinnings for the proposal.
Daniel Farber | April 17, 2020
During the coronavirus crisis, Dr. Anthony Fauci has become the voice of reason. Much of the public turns to him for critical information about public health while even President Trump finds it necessary to listen. In the Trump era, no one plays that role in the environmental arena. The result is a mindless campaign of deregulation that imperils public health and safety. We can't clone Dr. Fauci or duplicate the unique circumstances that have made his voice so powerful. However, we can do several things that would make it harder for administrations to ignore science.
Darya Minovi | April 16, 2020
On April 29, the Center for Progressive Reform (CPR) will host a webinar to discuss the public health and policy implications of COVID-19 and to highlight the many policy parallels between the pandemic and climate change. Speakers include Daniel Farber, JD, of UC Berkeley (and a CPR Member Scholar); Monica Schoch-Spana, PhD, of the Johns Hopkins Bloomberg School of Public Health; and Aaron Bernstein, MD, MPH, of Boston Children’s Hospital and the Harvard Medical School. Join us!
Laurie Ristino | April 15, 2020
Americans are experiencing a tidal wave of food insecurity related to the coronavirus pandemic. Historic unemployment claims and surging demand at food banks are laying bare the precarious circumstances of many of our citizens and the inadequacy of our social safety net. We can learn from the coronavirus epidemic--and we must in order to prevent human suffering in the future. Taking stock and then reforming our policies should start now while legislative momentum is possible--not after the country has moved past the apex of the disease. In a recent episode of the podcast, Good Law/Bad Law, Laurie Ristino joined host Aaron Freiwald to discuss the vital connection between the 2018 Farm Bill, the pandemic, and the startling food insecurity so many Americans are now facing.
Thomas McGarity, Wendy Wagner | April 13, 2020
Over the last month, the scripts of the daily White House COVID-19 briefings have followed a familiar pattern: President Trump leads off with assurances that the crisis remains “totally under control” and that miracle cures are just around the corner. Then agency experts come to the microphone and tell a very different story. For example, on March 19, the president reported that the Food and Drug Administration “very, very quickly” approved a malaria drug, hydroxychloroquine, for treating COVID-19 that it had previously approved for lupus, malaria, and rheumatoid arthritis. Later in the briefing, Dr. Anthony Fauci, the long-time head of the National Institute for Allergy and Infectious Diseases, cautioned listeners that controlled testing would have to be completed before we know whether the drug works on the novel coronavirus. And FDA later warned that it had definitely not approved hydroxychloroquine for fighting the virus.
Rena Steinzor | April 10, 2020
If you were the head of the U.S. Environmental Protection Agency (EPA) as news of the coronavirus pandemic hit, what would you do to implement your mission to protect public health? The best answer has three parts: first, determine what specific categories of pollution could exacerbate the disease; second, assemble staff experts to develop lists of companies that produce that pollution; and, third, figure out how the federal government could ensure that companies do their best to mitigate emissions.
Katie Tracy | April 9, 2020
On April 9, the Center for Progressive Reform joined the National Council for Occupational Safety and Health in calling on the U.S. Centers for Diseases Control and Prevention (CDC) to retract its outrageous guidance that allows employers to send workers potentially exposed to coronavirus back to work without any guaranteed protections. This flawed guidance is weaker than previous guidance, fails to protect workers, and is not based on scientific evidence.