The COVID-19 pandemic has created countless challenges for employers, including being sued by the families of workers who contend their loved ones contracted lethal cases of Covid-19 on the job, a new legal front that shows the risks of reopening workplaces without proper precautions.
Walmart, Safeway, Tyson Foods and some health-care facilities have been sued for gross negligence or wrongful death since the coronavirus pandemic began unfolding in March. Employees’ families allege that the companies failed to protect workers from the deadly virus and should compensate their family members as a result. Workers who survived the virus also are suing to have medical bills, future earnings and other damages paid out.
In responding to the lawsuits, employers have said they took steps to combat the virus, including screening workers for signs of illness, requiring they wear masks, sanitizing workspaces and limiting the number of customers inside stores. Some point out that it is impossible to know where or how their workers contracted Covid-19, particularly as it spreads more widely across the country.
“Whether employers face workers’ compensation liability for COVID-19 is a complicated legal question” says John Sarno, president of the Employers Association of New Jersey.
“Generally, workers’ compensation does not cover routine community-spread illnesses like a cold or the flu because they usually cannot be directly tied to the workplace” he says.
But at least 14 states have taken action to extend workers compensation coverage to include COVID-19 as a work-related illness, including New Jersey, whose legislature passed S2380.
S2380 creates a rebuttable presumption that workers in industries deemed essential who contract the coronavirus did so in the course of employment. The presumption applies retroactively to March 9, the date of Executive Order Number 103 declaring a public health emergency, and continues for the duration of the emergency, which still remains in force.
Essential employee is defined as:
1. A public safety worker or first responder, including any fire, police or other emergency responders;
2. Involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
3. Performs functions which involve physical proximity to members of the public and are essential to the public's health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
4. Is any other employee deemed an essential employee by the public authority declaring the state of emergency.
Sarno says that employers must take every precaution to avoid workers’ compensation liability, particularly because of the potential long term consequences of the virus, including damage to the lungs and other organs. Such an occupational exposure case can be re-opened years later.
As for general manufacturing, production was permitted to continue to operate under the state’s general business closure order, subject to health and safety protocols. But they were not necessarily designated as “essential” says Sarno
“I recall that members would say early on that they were still open as “essential manufacturers." But general manufacturing was never deemed essential. The sector was simply left open because it was not retail. Only a sub-section of manufacturing, including warehousing, as it relates to essential retail is covered. So, I don't think that the average worker on the shop floor is an employee deemed an essential employee by the public authority declaring the state of emergency.” he adds.
At the time of this writing, S2380 sits on Governor Phil Murphy’s desk for consideration. If signed into law it is retroactive to March 9th.
EANJ Webinar: Avoiding Workers' Compensation Liability During COVID-19, September 29th - https://www.eanj.org/programs-training/webinars/avoiding-workers-compen…