Tuesday, April 14, 2020
It is elementary that workers’ compensation is the quid pro quo for a tort claim. One consequence of this principle is that where a state’s workers’ compensation law categorically excludes certain claims from coverage there is a non-frivolous argument that a tort cause of action must be revived for the injured worker or for his or her decedent. Another wrinkle has to do with intentional conduct because the original quid pro quo seemed to presume employer tort immunity only for accidental work-related injuries (think "injury by accident"). Obviously, to be able to bring a tort claim does not mean that one will win the claim. But, as a practical matter, if a plaintiff survives summary judgment, no employer or carrier will want to be before a jury in an emotionally hyper-charged case. And it is possible that the universe of Covid-19 would provide such cases.
Take the case of Evans v. Walmart, filed in the Circuit Court of Cook County Illinois on April 6. Wando Evans and Phillip Thomas passed away during the last week of March, allegedly from Covid-19 complications. Evans’ estate has alleged a litany of tortious conduct under a wrongful death theory. From the complaint:
Walmart violated the duty of care and was negligent in failing to: cleanse and sterilize the store in order to prevent infection of COVID-19; implement, promote and enforce social distancing guidelines promulgated by the governments of the United States of America and the State of Illinois; provide the Decedent and other employees with personal protective equipment such as masks, latex gloves and other devices designed to prevent the infection of COVID-19; warn the Decedent and other employees that various individuals were experiencing symptoms at the store and may have been infected by COVD-19 which was present and active within the store; adequately address and otherwise ignored other employees at the store who communicated to management that they were experiencing signs and symptoms of COVID-19; follow the recommendations and descriptions of mandatory safety and health standards promulgated by the United States Department of Labor and the Occupational Health and Safety Administration as set out in Guidance on Preparing Workplaces for COVID-19; follow the guidelines promulgated by the Center for Disease Control and Prevention ("CDC") to keep its workplace in a safe and healthy condition and to prevent employees and others within the store from contracting COVID-19; develop an Infectious Disease Preparedness and Response Plan as is recommended by the CDC; prepare or implement basic infection prevention measures as is recommended by the CDC; conduct periodic inspections of the condition and cleanliness of the store to prevent and/or minimize the risk of employees and others from contracting COVID-19 as is recommended by the CDC; provide employees with antibacterial soaps, antibacterial wipes and other cleaning agents as is recommended by the CDC; develop policies and procedures for prompt identification and isolation of sick people as is recommended by the CDC; develop, implement and communicate to its employees about workplace flexibilities and protections as is recommended by the CDC; implement engineering controls designed to prevent COVID-19 infection including, but not limited to, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as clear plastic sneeze guards as is recommended by the CDC; cease operations of the store and to otherwise close the store when it knew or should have known that various employees and others present at the store were experiencing symptoms of COVID-19; properly train its personnel to implement and follow procedures designed to minimize the risk of contracting COVID-19; periodically interview and/or evaluate its employees for signs and symptoms of COVID-19; prohibit employees who were exhibiting signs and symptoms of COVID-19 from working at the store or otherwise entering the premises; and hired employees via telephone and other remote means in an expedited process without personally interviewing or evaluating whether prospective employees had been exhibiting signs and symptoms of the COVID-19 prior to the commencement of their employment.
The problem, of course, is that it is not immediately evident why the conduct alleged is not covered by the exclusive remedy rule. Perhaps the gambit is to plead the conduct as “willful and wanton,” as the complaint does, in an effort to take it out of workers’ compensation coverage (and thereby exclusivity). In Illinois, it appears that intentional conduct is not subject to the workers’ compensation’s exclusive remedy. See Toothman v. Hardee's Food Sys., Inc., 304 Ill.App.3d 521, 529 (Ill.App.1999). I’m not an Illinois lawyer so I have no idea whether this is a good strategy. What I do suspect is that cases of this type will arise in any state in which the exclusivity bar does not apply to intentional conduct. (Roughly half of all states have some kind of exception to exclusive remedy for intentional, “deliberately intentional,” assaultive conduct, and the like). The cases could become especially pitched should employers require formerly quarantined employees to return to work in the absence of a crystal-clear "all clear" from Governmental authorities. Assuming causation were established, injuries (or diseases) arising from those kinds of scenarios would strike me as highly viable in tort.
Returning to the possibility that a statute may categorically exclude or not cover certain diseases—for example, so called "ordinary diseases of life"—I would anticipate some lawyers may argue that the absolute exclusion from coverage of a disease such as Covid-19 (as opposed to coverage a claimant may not think adequate) should permit a tort cause of action under state constitutional right to remedy provisions. In Wyoming, for example, the statute categorically excludes coverage of work-related "mental injuries" (except, now, in the case of first responders), and courts have allowed tort actions even where the alleged mental injury arose out of and in the course of employment. Collins v. COP Wyoming (2016).
A variety of cases may prove challenging for courts.
Michael C. Duff