4.22.20

By Bob Ortbals, Jr.
St. Louis Office

and

Charles Eberhardt, III
Kansas City Office

The self-proclaimed first wrongful death lawsuit concerning an employee dying from complications of COVID-19 contracted while working has been filed. On April 6, 2020, the estate of Wando Evans filed suit in Illinois state court against his former employer, Wal-Mart, and the company’s landlord, alleging negligence and “willful and wanton misconduct and reckless disregard” for the health and safety of employees, which allegedly led to the employee contracting COVID-19. The suit alleges that a second employee from the same store also died from COVID-19 complications.

The suit alleges that Wal-Mart breached its duties to the Chicago-area employee by, among other things, negligently failing to

  • Clean and sterilize the store;

  • Implement and enforce social distancing guidelines issued by the United States and Illinois;

  • Provide employees with cleaning agents and personal protective equipment, such as masks, latex gloves, or other devices designed to prevent a COVID-19 infection;

  • Warn employees that various individuals were experiencing symptoms and may have been infected by COVID-19, “which was present and active within the store”;

  • Adequately respond to employees at the store who communicated they were experiencing symptoms of COVID-19;

  • Follow the guidance from the Occupational Health and Safety Administration and the Centers for Disease Control and Prevention on preparing workplaces for COVID-19;

  • Develop an infectious disease preparedness and response plan;

  • Cease operations of the store when it knew or should have known employees and others in the store were experiencing symptoms of COVID-19;

  • Train supervisors and employees on procedures to minimize the risk of contracting COVID-19; and

  • Periodically evaluate employees and prohibit employees experiencing COVID-19 symptoms from working at or entering the store.

Most of these alleged failings are taken directly from guidance issued by OSHA and the CDC about preparing for and handling COVID-19 in the workplace. While employers should remain aware of and attempt to follow CDC and OSHA guidance, employers should also understand that following such guidance isn’t a complete shield to litigation. Indeed, the guidance isn’t even legally binding. While courts may give some deference to the guidance—particularly under these emergency circumstances—courts may also ignore the guidance if they conclude that it conflicts with federal, state, or local laws or promulgated regulations.

For example, the OSHA guidance recommends that employers develop an infectious disease preparedness and response plan, which is sensible advice. But OSHA recommends that the plans consider the risk associated with “[w]orkers’ individual risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions, pregnancy).” This advice should raise a red flag for employers as each of the risk factors listed are protected classes under anti-discrimination laws. While it may be appropriate for employers to engage in an interactive dialogue with individual employees who fall within these groups about reasonable accommodations, those discussions should be based on that employee’s requests and circumstances—not a predetermined decision about disparate treatment for certain groups.

Additionally, administrative guidance isn’t always clear cut and sometimes it gives deference to the employer’s judgment in response to actual conditions, even though plaintiffs’ lawyers may treat such guidance as a checklist to be followed instead of flexible guidelines that are dependent on actual circumstances. For example, OSHA guidance recognizes that employers could attempt to reduce the risk of employee exposure through engineering controls, administrative controls, safe work practices, and PPE. But the guidance doesn’t require every employer to implement all aspects of each control. Instead, it recognizes there are advantages and disadvantages to each type of measure, including ease of implementation, effectiveness, and cost, which can also include supply chain disruptions impacting the employer’s ability to implement a control measure.

Given these uncertainties and the evolving nature of the administrative guidance, employers cannot completely eliminate the risk of litigation related to COVID-19. However, there are some strategies employers can consider to avoid this litigation or prepare a defense against it:

  • Review the pertinent workers’ compensation laws. In many states, allegations that an employer’s conduct (or lack of conduct) caused the employee to contract an illness in the workplace may be preempted by the exclusivity provisions of that state’s workers’ compensation law. In other words, employers may be able to argue that these allegations fall within the exclusive jurisdiction of the state’s workers’ compensation agency, regardless of whether the claims would ultimately be successful. Understanding the jurisdictions in which this defense would or wouldn’t be viable could be an important tool in assessing risk and deciding how to distribute scarce resources.

  • Contemporaneously document information used to make decisions related to COVID-19. Information related to the pandemic has evolved rapidly. Government guidance has changed over time—sometimes in conflicting ways—and employers’ reactions have changed over time. What was a reasonable reaction in February may not have been reasonable in mid-March; and what was reasonable in mid-March may not have been reasonable by early April. Consequently, it’s important for employers to document the information on which they are relying at the time of each decision and to understand where that documentation is located.

  • Document reasons for any prioritized implementation of health and safety measures. Similarly, where employers have prioritized implementation decisions—whether based on cost, supply chain issues, local conditions (including local stay-at-home orders or public health guidance), or other factors—understanding and documenting the reasoning behind those prioritization decisions at the time they were made could be important defense evidence. To that end, employers should also consider what portions of the company’s decision-making involve attorney-client and work-product privileges and what portions will be available for disclosure during litigation.

  • Create and identify an infectious-disease response team. Employers should identify their infectious-disease response team with a dedicated coordinator. This team can include representatives from senior management, safety, facilities management, security, human resources, or other departments. Identifying this team provides several advantages. It allows for more rapid, responsive, and streamlined decision-making in response to quickly changing conditions impacting multiple business stakeholders. It can create a clear point of contact for local management faced with questions and decisions concerning local conditions. It also leads to identifiable defense witnesses who can support the employer’s decision-making processes.

  • Communicate with and educate both managers and employees. Clear communication is critically important. The more employees can understand the conditions under which they are working, the known facts or government guidance surrounding COVID-19, how their employer is prioritizing their health and safety, how to respond to sickness or symptoms in their workplace (whether those symptoms are their own, a coworker’s, or a customer’s), the expectations for their job performance during these abnormal times, and the options available to them should they have concerns or issues, then the less likely they are to view their circumstances as a potential lawsuit.

The COVID-19 pandemic has presented new and unique legal challenges for employers. Our highly experienced attorneys are here to assist employers in navigating these uncharted waters.

Charles Eberhardt is a law clerk working in Constangy’s Kansas City Office.

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