On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
COVID WRONGFUL DEATH LAWSUITS TARGET EMPLOYERS
As the national death toll surpasses 200,000 and counting, the frequency of wrongful death lawsuits against employers is keeping pace. The family members of employees who have died from COVID-19 are filing wrongful death lawsuits, alleging that the failure of employers to keep loved ones safe at work was to blame.
While it would ordinarily be difficult or impossible to prove where an employee was infected, California Governor Gavin Newsom issued an executive order several months ago that creates a legal presumption that infected workers contracted the disease at work.
How do employers navigate the increasingly treacherous waters of the Corona Virus Pandemic? What follows will summarize some important strategies to consider.
Take Reasonable Preventative Measures
Many wrongful death actions will revolve around the issue of whether the employer took reasonable measures, based on then-existing scientific/medical guidance, to prevent COVID-19 from entering the workplace. As a result, any and all employer-implemented safety measures, such as airborne infectious disease prevention policies and procedures, will be indispensable to the employer’s defense. As a general proposition, the more effort the employer can show it invested in preventive measures, the stronger its defense will be.
Employers should seriously consider the following:
- Employers are well-advised to incorporate the CDC’s Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have experienced an exposure to a confirmed COVID-19 case. These are found at the CDC’s Public Health Recommendations for Community Exposure. Employers should also require that employees who are symptomatic remain at home until released by a medical professional or until they meet the guidelines for returning to work.
- The CDC has adopted different guidelines for essential businesses employing critical infrastructure workersto follow. They include guidelines for allowing asymptomatic employees who have had a direct COVID-19 exposure to continue to work.
- In preparing return to work policies, consider incorporating OSHA’s most recent guidelinesas a resource. OSHA’s directives and FAQs provide important guidance to employers seeking to safely reopen their businesses. While the guidance is in the form of permissive recommendations, OSHA has stated that an organization’s good faith efforts to comply with its recommended guidance will be taken into “strong consideration” when determining whether to cite violations and has indicated the General Duty Clause may be the basis for violations if employers do not engage in such good faith efforts. Such citations could also be evidence of an employer’s failure in a civil lawsuit.
- Make sure employees know what measures you are taking to protect them, by educating the workforce. Maintain an ongoing awareness of employees’ health – while respecting their legal rights to privacy and confidentiality. Constantly remind employees of COVID symptoms and encourage resort to medical attention if symptoms appear. Check in with isolated sick employees at least once a day to ask about their health. An employee with whom you engage will be less likely to pursue legal action against the employer. If a COVID-related death does occur, consider how you can assist the family, including assistance with funeral costs. Some workers’ compensation laws may also provide for funeral expenses if the illness was determined to be work-related.
- Keep employees apprised of confirmed cases of COVID-19 in the workplace. The CDC recommends that employers notify potentially exposed co-workers of confirmed cases. Err on the side of more, rather than less, information. Although no case law currently exists, it is believed that a failure to notify employees of a confirmed COVID-19 case may be a violation of OSHA’s General Duty Clause. Employers must, at the same time, maintain the privacy of infected employees.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 38 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.