By: Joan Cerniglia-Lowensen, Esquire
Employers find themselves in the new legal quandary regarding their obligations to their employees in light of the pandemic that is circling the globe. Not surprisingly, the first of many wrongful death actions has been filed against Walmart related to the death of one of its workers alleging willful and wanton misconduct and reckless disregard for the well-being of the employee. In fact, two employees from the same Walmart store died just four days apart.
At this time, most states have placed some type of restriction on a non-essential employee’s presence in the workplace during this pandemic. The list of what constitutes an essential employee varies greatly from state to state. Generally, most states that have instituted a ban on nonessential employees being present in the workplace have defined essential employees as including anyone that performs work involving the safety of human life and the protection of property. This generally includes grocers, trucking companies and pharmacies. Once again, some states have more expansive lists in the definition of essential services.
In general, most jurisdictions provide that the exclusive remedy for workers that are injured on the job is workers’ compensation. Even in those jurisdictions where worker’s compensation is provided, certain exclusions to the exclusive remedy frequently exist. In light of the current pandemic, it is unclear whether courts will carve out additional exceptions for this unprecedented occurrence. While not intended to be an exhaustive list, some of the current exceptions recognized in various jurisdictions include the negligence of third parties, intentional injuries and fraudulent concealment.
Third-party negligence is defined as the actions of an individual or entity that is neither an employer or coworker of the injured party. Examples of third-party negligence include injuries that occur as a result of faulty equipment utilized as part of the ordinary course of employment. Under this scenario, a faulty mask or gloves provided by the employer in good faith could result in a suit against the manufacturer of these items but any claim against the employer would remain a workers’ compensation claim.
Intentional injuries are when an employer acts willfully, deliberately, and with intent to cause injury to an employee. This could include an employer failing to provide the necessary safety equipment such as masks, shields and gloves. While some courts narrowly construe this exception, some have applied the exception when the employer has a history of not following safety guidelines and putting their workers in danger.
Fraudulent concealment is an additional exception to the exclusivity of a workers’ compensation remedy. It applies when an employer fraudulently conceals a worker’s injury and its connection to employment and the concealment results in an aggravation of the injury. The exception has typically arisen in situations involving asbestos, mold, or a toxic chemicals. In the present instance, a worker could allege that an outbreak or exposure to the coronavirus in the workplace was fraudulently concealed from workers subjecting them to unknowing exposure to the deadly virus. The issue of causation could be an obstacle to a worker’s liability claim, but it is unknown how courts would apply the exception under the current circumstances.
Adequate transparency while respecting the privacy rights of the employee is a critical step to preventing a general negligence claim against the employer in light of existing workers’ compensation laws. Additionally, documentation of the disclosure, steps taken to mediate any contaminated workplaces, adequate assurance that cross exposure has been prevented and the availability of safety equipment is paramount. How the legislature and courts will treat this unprecedented pandemic in regards to workers’ remedies has not yet been determined. The current law, however, indicates that transparency and adequate documentation that the appropriate mitigating steps were taken will minimize the risk of general negligence lawsuits against the employer.
Joan Cerniglia-Lowensen is a Member with Pessin Katz Law, P.A. (PK Law). She has over twenty five years of civil litigation experience throughout the State of Maryland in both state and federal courts. Prior to becoming an attorney, Ms. Cerniglia-Lowensen was a registered nurse achieving both a BSN and a MS with a major in nursing. As an attorney, she primarily practices in the health care defense field. She defends nurses, doctors, veterinarians, dentists, healthcare providers, healthcare facilities, mental healthcare workers, urgent care facilities and nursing homes in medical malpractice matters; professional liability and tort claims; and disciplinary actions before various regulatory boards. She provides risk management advice to a variety of healthcare entities, insurers and individuals and continuing education to healthcare workers and entities; and has been published in both journals and texts on issues of risk management and liability of healthcare professionals. She also defends individuals and entities in a variety of civil litigation matters. She can be reached at 410-339-6753 or jclowensen@pklaw.com.
