As COVID-19 cases and deaths continue to increase, so too does the number of claims submitted versus companies. Recently, an increasing variety of families of staff members who passed away from COVID-19 have actually asserted wrongful death actions against employers for failing to keep their member of the family safe while at work. What can employers learn from these claims to not just keep their workers safe but prevent being on the getting end of such a claim?
Throughout the nation, companies are starting to be served with wrongful death claims alleging an employee’s direct exposure to COVID-19 at work must result in company liability, despite the general rule that the workers’ compensation system is the unique remedy for such claims. The below matters are some examples of the types of claims that have been asserted against employers by families of deceased employees:
Lanzo v. Generations Behavioral Health The complainant, the better half of a deceased staff member working as a nurse at a mental health facility, declares wrongful death under Ohio law. In assistance of her claim, the plaintiff alleges that the psychological health center stopped working or refused to follow COVID-19 directives issued by the state in order to reduce the spread of the virus. This, the problem states, exposed her spouse, Raymond Lanzo, to COVID-19. The grievance does not claim the center was incorrect to run during the pandemic, but that it stopped working to carry out the policies and procedures that it should have in location to follow the state’s pandemic instructions. The complainant further declares that the company was “negligent” in its failure to supply”appropriate security devices.”Allegations in the grievance likewise include that the psychological health center’s conduct was”wanton and willful,”most likely both to boost damages and prevent any argument by Generations Behavioral Health that workers’ compensation bars the claims, as easy negligence claims versus an employer are generally disallowed by the employees’ compensation laws. However, the complainant is looking for more than $25,000 in damages, consisting of medical costs and funeral expenses.
Norwood v. Rodi Marine LLC
This wrongful death suit was submitted by the other half of a departed team member versus a vessel owner/Jones Act employer in the Eastern District of Louisiana. The plaintiff declares that her spouse, Michael Norwood, was a crew member aboard a supply vessel owned and operated by Rodi Marine. In March and April 2020, the vessel supposedly was located at the Austal Marine center in Mobile, Alabama. Throughout that time, the vessel’s captain reportedly was dispatched to New Orleans to carry out services on behalf of Rodi Marine.
Following his return, he supposedly fell ill. Although somewhat uncertain, it appears that the vessel captain sequestered himself in his quarters for 2 to 3 days until Rodi Marine was informed of his illness. The company then removed the captain from the vessel for screening, which exposed that he had COVID-19. Norwood supposedly returned home when the captain was gotten rid of from the vessel and was separated from contact with others except for his spouse when he too fell ill. He reportedly caught the virus regardless of medical treatment.
The claim alleges that Rodi Marine negligently caused Norwood’s death for:(1) failing to supply Norwood with a safe work environment; (2) failing to implement policies and treatments to safeguard the team from COVID-19; (3) failing to train vessel crew members regarding the actions needed to avoid contracting and spreading COVID-19; (4) allowing the vessel captain to remain aboard the vessel while contaminated with COVID-19; and (5) allowing the vessel captain to travel to New Orleans when it was on “lock down” and understood to be a COVID-19 hotspot. The plaintiff did not identify a specific amount of supposed damages.
Elijah v. Port Authority Trans-Hudson Corporation
The complainant, the better half of a deceased power rail mechanic for a rail provider, filed this wrongful death claim under New Jersey law. The complainant alleges that her husband was exposed to COVID-19 when he accepted a colleague who later evaluated positive for COVID-19. The decedent was not using a mask because his employer apparently “instructed its employees at safety meetings not to use masks at work unless they were performing their specific task functions.”
Approximately 10 days after being exposed, the decedent began to experience signs of COVID-19, which progressively got worse. The problem declares that decedent was hospitalized, and over the next 20 days, experienced a “terrible and lengthy death.”
The complainant alleges that the employer was irresponsible by: (1) stopping working to offer employees with a safe place to work; (2) failing to appropriately train workers about contracting COVID-19 at work; (3) stopping working to prompt offer PPE to employees; (4) stopping working to carry out contact tracing; (5) stopping working to evaluate employees for COVID-19; (6) failing to prompt quarantine decedent and other workers who had actually been exposed to COVID-19; (7) failing to apply social distancing procedures for staff members; (8) failing to correctly clean locations; (9) failing to alert staff members of the dangers of contracting COVID-19 at work; (10) failing to clinically deal with the decedent; and (11) failing to follow its own safety guidelines, practices, and procedures. The plaintiff did not identify a particular sum of supposed damages.
How To Defend Against Such Claims?
The question at the heart of much of these wrongful death lawsuits revolves around whether the company took affordable steps, based upon then-existing assistance, to do its best to avoid the spread of COVID-19 in the office. Appropriately, the timing of any COVID-19-related preventive precaution, including policies and procedures, carried out in any provided case will be important evidence. Choosing which actions to take and when is no basic task in this continuously altering environment. However, the more effort an employer makes toward attending to the safety of its employees, the stronger the defenses will be.
Here are some “finest practices” to bear in mind, both to assist protect staff members from health problem and to assist avoid possible lawsuits.
Follow the CDC’s Interim Assistance for Services, including finest practices for social distancing, Guidelines for Cleaning Up and Sanitizing the office, and quarantining staff members who have an exposure to a validated COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Likewise, send out staff members who are symptomatic home till launched by a physician or up until they meet the standards for terminating self-isolation.
If you are a vital business using critical infrastructure employees, the CDC has embraced different standards to follow, consisting of enabling asymptomatic workers who have had a direct COVID-19 direct exposure to continue to work as long as certain standards are met.
Use OSHA’s most recent guidelines as a resource when developing return to work plans and policies. OSHA’s regulations on carrying out the recognized guiding concepts and Frequently asked questions may help employers in safely reopening their companies and work environments. While the assistance remains in the kind of non-mandatory suggestions, OSHA has actually specified that a company’s good faith efforts to abide by its suggested guidance will be taken into “strong factor to consider” when figuring out whether to point out violations and has indicated the General Responsibility Clause might be the basis for infractions if employers do not take part in such great faith efforts. Such citations could likewise be evidence of an employer’s failure in a civil suit.
Educate your employees and engage with them. Make sure employees understand what steps you are requiring to protect them. Be sure you stay aware of their health– while respecting their legal rights to personal privacy and privacy. Constantly advise staff members of the symptoms of COVID-19 and advise them to look for medical attention if symptoms appear. Check in with isolated ill employees at least when a day to ask about their health. An employee with whom you engage will be less likely to look for lawsuits against their company. If a COVID-19 death does take place, consider how you can assist the family, including help with funeral costs. Some workers’ payment laws may likewise offer funeral service costs if the illness was identified to be work-related.
Inform employees of verified cases of COVID-19 in the workplace. The CDC advises that employers alert possibly exposed colleagues of confirmed cases. Err on the side of openness. Although no case law currently exists, our company believe the Occupational Safety and Health Administration may ultimately figure out that a failure to alert staff members of a validated COVID-19 case is a violation of OSHA’s General Duty Clause. Companies need to still keep the privacy of the verified worker.
Stay on top of current and developing standards. Recommendations from the Center for Disease Control (CDC), the Department of Labor (DOL), Occupational Security and Health Administration (OSHA) and others, along with state and regional executive orders, continue to progress, in some cases every day. Companies should designate people to stay up to date with modifications and share them with management.
More Wrongful Death Claims Are Likely On The Horizon
As kept in mind above, it is prepared for employers will continue to be the target of these claims, with relative possibly claiming that their loved ones were negligently or willfully exposed to COVID-19 due to inadequate security policies and practices. You need to take proper preventive steps not just to cut lawsuits, but likewise provide feasible defenses need to such cases occur.
For additional details about COVID-19-related litigation being filed throughout the nation, visit our COVID-19 Employment Lawsuits Tracker. Our COVID-19 Employment Litigation and Class & & Collective Actions section also has a listing of our litigation-related alerts and employee managing these types of cases.
Fisher Phillips will continue to monitor any further developments and provide updates on these and other labor and work issues impacting companies. The company welcomes readers to subscribed to Fisher Phillips’ alert system to collect the most updated details.
Source: Fisher Phillips