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Firm COVID-19 Bulletin: Will COVID-19 Lawsuits Against Employers Overwhelm New York State Courts Like COVID-19 Patients Overwhelmed the Healthcare System?

Sharyn Rootenberg June 2, 2020 in  COVID-19

Will COVID-19 Lawsuits Against Employers Overwhelm New York State Courts Like COVID-19 Patients Overwhelmed the Healthcare System?

While New York State was on “pause” and its court system was not accepting any new cases, the families of employees who died from COVID-19 related complications began suing their employers for wrongful death. For example, on April 6, the estate of a Walmart employee in the Chicago area commenced an action against Walmart, alleging the employee contracted COVID-19 at work due to Walmart’s willful and reckless failure to implement measures designed to limit the virus’ spread and to create protocols for workers exhibiting symptoms associated with the virus (Evans v. Walmart Inc., et al., Case no. 2020L003938, in the Circuit Court of Cook County, Illinois).

Likewise, on May 15, Tyson Foods, Inc. was sued in Texas by the family of one of its workers who died after contracting COVID-19, for allegedly failing to provide a safe workplace including proper protective gear (Le et al. v. Tyson Food Inc., case no. 2:20-cv-00131, in the US District Court for the Northern District of Texas).   This lawsuit came on the heels of another lawsuit filed by the family of another Tyson worker who died after contracting COVID-19 (Lay et al. v. Tyson Food Inc., case no. 2:20-cv-00125-z, in the Amarillo Division of the Northern District of Texas), with similar allegations.

These lawsuits are a good predictor of lawsuits to come in New York.  It is only a matter of time before a wave of wrongful death lawsuits will flood the New York court system.  These lawsuits, like those filed in other states, will likely allege that the employer negligently, recklessly, and even willfully failed to adequately protect its workers by either failing to provide adequate personal protective equipment (PPE), instituting and enforcing social distancing in the workplace, employing CDC safety guidelines, etc.

In New York, as in other states, workers’ compensation benefits have long been the exclusive remedy for on-the-job injuries.  Workers’ compensation is a state-mandated insurance program that provides benefits to employees who suffer job related injuries and illnesses.  Although every state has its own laws and programs, whether claiming a work-related injury or illness, the malady must have arisen out of the course and scope of employment and been caused by conditions particular to the work done.

Since contracting a novel coronavirus such as COVID-19 is more reasonably characterized as an illness than injury, the question becomes whether it will be deemed a job related or occupational disease for workers’ compensation purposes.  If workplace conditions placed essential workers at greater risk of contracting the virus that the general public, then workers’ compensation laws may shield employers from wrongful death claims.  Many states have started making clear, either by executive order or amendments to the workers’ compensation law, that workers’ compensation benefits extend to health care workers and first responders who died from COVID-19 and some states have extended the same benefits to essential workers.  In those states, the family members of deceased employees will be barred from suing their employers.

Presently, the New York State Legislature is considering bills that would amend this State’s workers’ compensation laws to include exposure to COVID-19 as an occupational disease (S8266 / A10401).  The bills are presently under review in the Senate and Assembly Labor Committees.

Even if the Legislature does not enact the pending legislation, COVID-19 still may be treated as an occupational disease or accidental injury under the workers’ compensation statute, an issue that will most likely be decided on a case-by-case basis.  Towards that end, the Chairperson of the New York State Workers’ Compensation Board issued a letter to insurance carriers and payers of workers’ compensation benefits about claims for workers’ compensation from first responders and other front-line employees who develop COVID-19 during the course of their employment.  The letter urged them to conduct speedy investigations and, in questionable situations, to consider issuing payment without initially accepting liability rather than disputing the claim.  Although this letter is by no means a policy declaration, it is certainly a hint that the Workers’ Compensation Board is at least willing to consider COVID-19 a compensable workplace injury or disease for first responders and other essential workers.

In conclusion, the first wave of lawsuits to be filed in New York State will no doubt be brought predominantly by family members of essential workers who were required to continue working while the rest of this state was on pause and then contracted COVID-19 and tragically died as a result.  Assuming COVID-19 will be treated as an on-the-job illness or injury, these suits against employers for failing to adequately protect essential workers by providing adequate PPE, enforcing social distancing, and following CDC cleaning and disinfecting guidelines, will be dismissed as barred by workers’ compensation laws.  There are, however, limited exceptions to the exclusivity of workers’ compensation, either where the employer did not secure and/or maintain workers’ compensation insurance (which is a violation of law) or where the employer engaged in intentional and deliberate conduct that the employer knew would cause employees to contract COVID-19.  Given the lack of information at the start of the pandemic, followed by conflicting information and changing safety protocols, it will be an uphill battle for plaintiffs to prove that employers deliberately made decisions they knew would cause employees to contract COVID-19.  In the absence of such proof, the majority of these wrongful death claims will be dismissed as barred by workers’ compensation laws.