Issue 103 - September 2020
Companies Need Strict COVID Rules to Avoid Third-Party Lawsuits, Experts Say
(This article originally appeared in the WorkCompCentral news section on August 31, 2020 and is reprinted with the express permission of WorkCompCentral.)
Employers that fail to implement and enforce recommended COVID-19 guidelines could open themselves up to potentially expensive litigation, including third-party claims, insurance experts say.
EPIC Insurance Brokers & Consultants and employment law firm Fisher Phillips co-hosted a webinar Friday to advise companies on how to keep their workplaces free of COVID-19 and how to defend themselves against claims and lawsuits if an employee says he got sick on the job.
“It doesn’t take much to kind of know where we’re at in terms of the tremendous burden being placed on your companies right now,” said Bob Yonowitz, partner at the Irvine, California, office of Fisher Phillips. “It is impacting every component of our daily existence.”
While most instances of employees falling ill are handled by workers’ compensation systems, the COVID-19 pandemic has ushered in third-party claims that could circumvent the normal process and catch some companies off guard, Yonowitz said.
Yonowitz said there are two types of emerging third-party claims:
- Claims for wrongful death by families of COVID-infected employees alleging that employers failed to keep their loved ones safe at work.
- Claims by family members of COVID-infected employees who catch the virus themselves claiming employers failed to keep their family members safe while at work.
An individual worker’s claim against an employer would fall under exclusive remedy within the workers’ comp system. But a third-party claim would fall outside of the normal process, especially if the claimant alleges the company’s behavior directly contributed to a worker or family member contracting the virus, Yonowitz said.
In that case, the claimant would have to show the employer was “wanton and reckless” in putting workers at risk, an extremely high bar to clear.
But companies still should be diligent and transparent in their efforts to prevent outbreaks from occurring, which will help in court, Yonowitz said.
“It’s important to show that the company was exercising reasonable care,” he said.
Yonowitz said he expects more COVID-related litigation to pour in as the pandemic continues. He said claimants’ attorneys will pick through everything a company did – or didn’t do – that may have led to workers contracting the virus. If they can show an employer’s behavior rose to a level beyond normal negligence, it’s possible to advance and even win such cases.
“They’re going to try and see: Did you have posters? Did you have training? Did you do proper cleaning and disinfection? Did you inform others in the workforce when there was a positive case?” Yonowitz said. “Were you following all those steps in trying to maintain a safe workplace?”
Common allegations seen in third-party cases include companies failing to implement policies that conform to state directives and failing to provide appropriate safety equipment and adequate training resources.
Employers should also maintain social distancing measures and consistently advise workers of the dangers of COVID-19 and how to avoid them, Yonowitz said.
“It’s about training,” he said. “It’s about making sure that there’s adequate masks, that there’s adequate protective equipment, that employees are trained on how to use them and when to use them. All these areas can create a greater zone of risks for companies.”
Yonowitz said employees could be called to testify as to whether the company had COVID-19 policies and if workers were following them. Plaintiffs’ attorneys won’t wait to pounce if they see holes in companies’ safety procedures, he said.
“They’re waiting for you to not follow the protocols so they can go ahead and create a whole new cottage industry for themselves on these third-party liability claims,” Yonowitz said.
There are a number of ways companies can be proactive, even after a worker tells them they might have caught the virus, said Daniel Kanter, a California attorney who serves as a member of Fisher Phillips’ COVID-19 Taskforce.
When a worker says he was exposed to COVID-19, employers should first ask him where he got it, Kanter said. If he says it was probably outside of work, the employer should immediately tell its workers’ comp carrier. If the employee can’t say for sure where he might have been exposed, the company should ask him to recount the places he has recently been. If the employee recently took a vacation, the company needs to find out where he went and where his normal workstation is in case testing will be necessary, Kanter said.
The more information an employer can learn upfront, the easier it will be to mount a defense to a claim or lawsuit, he said.
Kanter also recommended that companies should give employees health-screening questionnaires.
“Those types of questions are a good tool for keeping potentially infected workers out of the workplace,” he said.
If an employee does test positive, his closest-proximity coworkers need to be informed. Privacy concerns should prohibit companies from naming the worker, but coworkers should be told that someone was infected, when it happened, where it happened, whether testing will be necessary and whether the business may face short- or long-term closure, Kanter said.< Back to Full Issue Print Article