A Blog by Jonathan Low


Aug 4, 2020

Covid Lawsuits Are Beginning To Hit Employers

Families of employees who died or have become disabled due to Covid have begun legal proceedings against Walmart, Safeway and other companies like meat packers whose employees have suffered extensive Covid infections.

The basic question is whether the employer took action to protect its workforce or, as in the case of some, actively discouraged masks or refused to invest in safety equipment. The issue is complicated by the fact that knowledge of how the virus is transmitted and what works best as protection has changed as the healthcare  profession learn more about it. JL 

Janet Adamy reports in the Wall Street Journal:

Walmart, Safeway, Tyson Foods and some health-care facilities have been sued for gross negligence or wrongful death since the coronavirus pandemic began. Employees’ loved ones contend 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. Cases may come down to a simple question: “What was negligent as opposed to just an unfortunate outcome?”
Employers across the country are 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.
Walmart Inc., Safeway Inc., Tyson Foods Inc. and some health-care facilities have been sued for gross negligence or wrongful death since the coronavirus pandemic began unfolding in March. Employees’ loved ones contend 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.
The new coronavirus has created a global health and economic crisis, responsible for the death of more than 150,000 people in the U.S. while straining resources and institutions.
The cases are part of an unfolding liability threat facing U.S. companies of all industries as many resume operations after having employees work remotely or being shut down altogether for months.
The coronavirus relief bill that Senate Republicans unveiled this week would make it harder for workers to sue their employer if they get sick on the job. The proposed legislation protects companies, schools and churches from being held liable for coronavirus infections beginning in December 2019, unless they acted with willful misconduct or engaged in grossly negligent behavior.
The bill would cap punitive damages, set a clear-and-convincing-evidence burden of proof and raise requirements for personal-injury lawsuits. It would also push such lawsuits to federal courts, which potentially are more favorable to defendants.
The measures face resistance in the Democratic-controlled House, where Speaker Nancy Pelosi opposes the GOP liability plans. She wants lawmakers to instead bolster protections for workers by strengthening Occupational Safety and Health Administration rules.
Legal experts say the GOP proposals would significantly curb, but not eliminate, cases filed on behalf of sickened workers.
“The amount of litigation on the horizon is enormous,” said Harold H. Kim, president of the U.S. Chamber Institute for Legal Reform, an arm of the business trade group.
Labor unions and consumer advocates say that few lawsuits have been filed, and that the Senate bill would deny redress to injured workers and their families. About 69 employment and labor cases contending that workers were exposed or potentially exposed to the virus had been filed as of late July, according to a coronavirus litigation tracker maintained by the law firm Hunton Andrews Kurth.
Employers rarely are found liable for employee deaths tied to the workplace. That’s because the legal bar for proving fault is high, and because states often restrict such complaints to their workers’ compensation systems, which typically limit payouts to a portion of a worker’s salary, coverage of their medical bills and disability compensation.
Legal experts say the coronavirus pandemic could change how such cases play out. Early lawsuits on behalf of sickened workers center on whether employers adhered to state and federal guidelines for reducing the spread of the virus, which evolved rapidly in March and April, especially on mask use, and at times conflicted with each other.
Employers who didn’t send sick workers home, enforce social distancing or adhere to mask-wearing guidance could be found liable, legal experts say. Cases that show the employer acted with gross negligence—which aren’t precluded by the Senate proposal and sometimes can proceed outside the workers’ compensation system—could result in out-of-court settlements or end up before sympathetic juries.
Pedro Zuniga worked for 22 years handling produce in a Safeway distribution center in Tracy, Calif. In mid-March, he and other workers complained to supervisors that the work environment wasn’t safe because colleagues were coming in sick, according to Paul Matiasic, an attorney representing the claim by Mr. Zuniga’s family. Mr. Matiasic said management threatened to retaliate against workers if they didn’t show up as the distribution center expanded its hours to meet increased food-shopping demands.
On March 20, the grocer posted a “Team Talk” memo in the distribution center titled “Coronavirus Risks: Fact vs. Fiction.” The sign, which bears the logo of Safeway parent Albertsons Companies, recommended against wearing a mask in the workplace.
“If you are healthy, a mask will not protect you from the respiratory drops an infected person coughs out,” the sign read. “Open areas of the mask can let those drops in.”
On April 4, Mr. Zuniga—trembling, coughing and feverish—went to an area hospital after getting a Covid-19 test, which came back positive. The next day he was transferred to intensive care, where he was put on a ventilator and placed in a medically induced coma. He died eight days later at age 52.
Norma Zuniga, his widow and the mother of their five children, in May sued Safeway and Albertsons for gross negligence and wrongful death in Alameda County Superior Court seeking general and punitive damages. The lawsuit contends that the grocer failed to follow March 9 guidance from OSHA aimed at preparing workplaces for Covid-19, which called for isolating sick workers. It said the grocer misled workers when it said that wearing protective equipment wouldn’t help prevent the spread of the disease.
“It defies common sense,” Mr. Matiasic said of the mask posting, a copy of which is included in Ms. Zuniga’s lawsuit.
An Albertsons spokeswoman said the company doesn’t comment on pending litigation. In July, Safeway and Albertsons filed a motion to dismiss the complaint on the grounds that it didn’t meet the criteria for proceeding outside the workers’ compensation system. It also had the case moved to the U.S. District Court for the Northern District of California.
The grocer denied that it failed to take appropriate workplace safety precautions. It said that as of March 20, neither the CDC’s nor California’s official guidance recommended wearing masks, and that state occupational safety and health interim guidance at the time said masks didn’t protect people from airborne infectious disease. It also said that state health and safety officials inspected the distribution center on April 15 regarding Covid-19 procedures and found no violations.
The Ebola outbreak of 2014 offers some clues for how sickened workers’ lawsuits could play out.
Two nurses contracted the deadly virus after treating a Liberian Ebola patient at a Dallas hospital that year. One of them, Nina Pham, sued the company that owned the hospital for not properly training or protecting staff to handle Ebola. The hospital’s owner, Texas Health Resources, denied those claims. The two sides reached an undisclosed settlement out of court two years later.
Brent Walker, an attorney who represented Ms. Pham, said that hospitals that didn’t provide properly fitted N95 masks to clinicians treating Covid-19 patients face particular liability risk because federal regulations already required they do so before the pandemic hit. Other cases are expected to hinge on whether health-care employers followed international and U.S. safety guidelines, he said.
In general, cases may come down to a simple question: “What was negligent as opposed to just an unfortunate outcome?” Mr. Walker said.
Health-care employer groups say that facilities faced an unprecedented workplace safety threat when the pandemic unfolded and shouldn’t be held responsible if they took reasonable precautions to protect employees.
“Many of our institutions were overwhelmed with people with the symptoms and had to react accordingly and were not getting the best guidance from the government,” said Tom Nickels, executive vice president at the American Hospital Association. “To come back and second guess and pick apart actions that people took under a very stressful situation, we think, is incredibly unfair.”
Wando Evans worked the overnight shift stocking shelves and performing maintenance at a Walmart in the Chicago suburb of Evergreen Park. In late March, he told store management he had symptoms consistent with Covid-19, said Tony S. Kalogerakos, an attorney representing Mr. Evans’s family. “They just put him back to work,” Mr. Kalogerakos said, citing information from Mr. Evans’s colleagues.
On March 23, after his symptoms worsened, he again notified store management and was sent home. Two days later he was found dead in his home at age 51.
Mr. Evans’s family in April filed a wrongful-death lawsuit in Cook County Circuit Court against Walmart seeking unspecified damages. It contends the retailer didn’t initially follow CDC or OSHA recommendations, which put workers and the public at risk.
Walmart filed a motion to dismiss the case in June on the grounds that the claims cannot be brought in a civil lawsuit because they should be handled exclusively by the Illinois Workers’ Compensation Commission.
Peggy Cross, a 72-year-old part-time employee at a Walmart in Dallas, in June sued the retailer in Dallas County District Court for more than $1 million. Her suit contends that she contracted Covid-19 at work because the retailer failed to provide proper protective equipment and take other safety measures. Ms. Cross survived the virus after being hospitalized for a week in late April, according to her complaint. Ms. Cross and her lawyers didn’t respond to requests for comment.
Walmart spokesman Randy Hargrove declined to answer specific questions on Mr. Evans’s lawsuit, or comment on Ms. Cross’s. He said that, while it may be impossible to determine where or how someone contracts the virus, the retailer is taking steps to protect workers and customers.
In April, Walmart began taking store workers’ temperatures and requiring that they wear masks or other face coverings. Walmart also has installed sneeze guards at registers, placed social-distancing decals on floors and limited the number of customers in stores. It announced that customers must wear masks in stores in mid-July.
“We continue to mourn the loss of Wando Evans and our thoughts remain with his family. We’re also thankful Ms. Cross has recovered from her illness,” Mr. Hargrove said. “We take these situations seriously and are continuing to defend the company in both cases.”
The families of three employees who worked at Tyson’s pork processing plant in Waterloo, Iowa, and died after contracting Covid-19 sued the meat company and nearly 20 of its executives, managers and supervisors in June.
Their complaint, filed in Iowa District Court for Blackhawk County, contends that management was aware that the virus was spreading through the plant by early April, and was urged by local law enforcement and health officials to shut it down. Yet Tyson kept the plant open for days and allowed employees to work crowded elbow-to-elbow while most weren’t wearing face coverings, according to the lawsuit.
More than 1,000 Tyson employees were infected with Covid-19 at the Waterloo facility and five have died, according to the lawsuit.
Among them were Sedika Buljic, a 58-year-old Bosnian refugee who worked at Tyson for 18 years before she died April 18 from complications of Covid-19. Reberiano Garcia, a 60-year-old father of 10 whose wife died of cancer last fall, succumbed to the virus on April 23. Jose Luis Ayala, Jr., a 44-year-old maintenance worker known for tinkering with computers, died May 25 from complications of the virus.
The complaint filed by their families says that the company acted with gross negligence because it encouraged sick employees to come to work and failed to implement or convey a range of safety measures to workers, many of whom don’t speak English. The families are seeking unspecified economic, noneconomic and punitive damages.
Tyson said on April 22 it was closing the plant because of Covid-19 cases, worker absenteeism and community concerns. It reopened May 7 after testing all returning workers for the virus, opening an on-site health clinic at the plant and taking other safety measures.
In a court filing earlier this week, Tyson denied the plaintiffs’ allegations and moved the case to a federal court.
Tyson spokesman Gary Mickelson declined to comment on the lawsuit. He said the meat company started educating workers about the virus in multiple languages in January and told employees to stay home if they didn’t feel well. Mr. Mickelson said that the county health department for weeks declined to share information about Tyson workers with Covid-19, and that once it provided the company with a list of names and case information, the company decided to idle production at the plant.
“We’re saddened by the loss of any Tyson team member and sympathize with their families. Our top priority is the health and safety of our workers,” Mr. Mickelson said. He said Tyson is aware of a small number of active Covid-19 cases involving workers at its Waterloo plant.
Maurice Dotson, a nursing assistant who helped clothe and change the diapers of residents at the West Oaks Nursing and Rehabilitation Center in Austin, Texas, went to a local hospital in early April with symptoms of the new coronavirus. He told his mother that “I got the virus at my job but I’m going to be all right,” said Quentin Brogdon, an attorney for his mother.
Mr. Dotson tested positive for the virus and, after being put on a ventilator, died April 17. He was 51 years old. In May his mother filed a lawsuit in Travis County District Court against the nursing home seeking damages of $1 million or more. Her petition contends that the nursing home acted with negligence because it failed to appreciate the danger of Covid-19 and didn’t properly train workers to mitigate its spread.
Regency Integrated Health Services, which manages the nursing home, denied the allegations in a June court filing.
Brooke C. Ladner, a senior vice president at the company, declined to comment on the lawsuit. She said staff members at the facility are following enhanced infection control and prevention processes that were implemented when the pandemic began in early March, and that Mr. Dotson “was a dedicated health-care worker who touched countless lives.”


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