Workers’ Compensation Being Bypassed for COVID-19 Wrongful Death and Personal Injury Claims

By Lee Allphin, Employer Advantage Founder and Chairman of the Board

Today’s news is full of discussion about reopening the country and when and how businesses in each state can return to “normal” operations. Although companies, workers, and the government are champing at the bit to see America back in businesses, the lack of structured and consistent COVID-19 workplace safety guidelines to prevent workers from contracting the coronavirus inadvertently puts employers on a tightrope walk over lava.

Looming unpredictably is the potential threat highlighted in this advertisement by a prominent East Coast law firm: “Let us help you with Wrongful Death and Injury Claims for Workplace COVID-19 Exposure!”

This is just one example of many that illustrates even before the national return to work begins, employers have already begun to be served wrongful death and personal injury lawsuits based upon employee exposure to COVID-19 at the workplace.

Normally, the workers’ compensation system is the exclusive remedy for such claims. But in this new COVID-19 frontier, plaintiffs’ attorneys are working to bypass such statutes to achieve higher and quicker payouts for themselves and their clients.

As these claims begin to reach the news, rest assured an increasing number of lawsuits will be filed in the coming days, weeks, and months.

Companies who operate in good faith to protect their employees and provide a safe workplace must act now if they wish to avoid such claims from ever being filed, and put themselves in the best position to defend against such claims, should they arise.

Why These Lawsuits are Being Filed:

  • Higher Payouts. Workers’ compensation insurance generally covers injuries or illnesses that are caused “unintentionally” by an accident or exposure in a work environment. However, because the damages recovered in a workers’ compensation claim are generally capped by statute, plaintiffs’ lawyers are looking to ignore the statutory workers’ compensation system. They may instead file a lawsuit in court claiming intent or willfulness, as they recognize that the potential recovery may be much higher. In some states, the worker may file both a workers’ compensation claim and a lawsuit.
  • The most visible attorneys today are personal injury lawyers. They build their business on publicity. Some will take advantage of the current media coverage directed towards COVID-19-related illness and file the lawsuit to appear in the public limelight. Workers’ compensation claims are not as alluring as a complaint publicly filed in state or federal court demanding a jury trial.
  • Right to Jury Trial. Workers’ compensation claims are generally heard by a hearing officer or administrative law judge during a “bench trial,” with no jury present. In a wrongful death or personal injury claim, the family of a deceased worker (or an injured worker themself) could have a jury of their peers evaluate the evidence and decide, in most cases, the amount recovered. Juries tend to award higher amounts the judges presiding over bench trial.
  • Access to Additional Funds and Early Settlement. Lawyers may file lawsuits in lieu of, or in addition to, workers’ compensation claims, to gain access to other funds, like general liability insurance To avoid the publicity and costs of protracted litigation, defendants may settle these claims quickly, giving the family or worker a quick payout rather than enduring the lengthy workers’ compensation process.

The best way to defend a wrongful death or personal injury lawsuit is to prevent it from ever occurring.

Workplace safety has never been more important. Whenever normal operations resume, employers must continue to take steps to avoid employee exposure to COVID-19.

Document, document, document! Some prudent workplace safety practices for employers concerning the coronavirus include:

  • Follow the CDC’s Interim Guidance for Businesses, including best practices for social distancing.
  • Adhere to strict guidelines for cleaning and disinfecting the workplace.
  • Quarantine employees who have been exposed to a confirmed COVID-19 case, per the CDC’s Public Health Recommendations for Community Exposure.
  • Send employees with confirmed cases home until released by a medical professional or until they meet the guidelines for discontinuing self-isolation.
  • Educate employees and engage with them. Constantly remind employees of the symptoms of COVID-19 and urge them to seek medical attention if symptoms appear.
  • Check in with isolated sick employees at least once a day and inquire about their health. (An employee with whom you engage, and their family, will appreciate this courtesy.)
  • Inform all employees of confirmed cases of COVID-19 in the workplace.
  • Notify potentially exposed co-workers of confirmed cases immediately.
  • Be totally transparent. No case law currently exists, so the Occupational Safety and Health Administration (OSHA) may ultimately determine that a failure to notify employees of a confirmed COVID-19 case is a violation of OSHA’s general duty clause, the agency’s generic requirement to maintain a safe work environment.
  • Document the company’s COVID-19 response plan and measures, showing commitment to employee safety during the pandemic. You may also have the lawsuit dismissed if you can show that, given your safety practices, it was nearly impossible for the disease to be contracted at work due to the company’s actions or omissions.

Getting back to business will never be the old “business as usual.”

Even if you take these steps, a business may still face a wrongful death or personal injury lawsuit. Our advice is to retain counsel and take immediate steps to defend the claim.

The Employer Advantage Risk Management and Safety Department provides our clients help in reopening their business. Please call us if you need assistance.

Be safe and well as America reopens, and business begins anew.

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