By: Senior Counsel Camille Stearns Miller
“If you fail to prepare, you’re prepared to fail.” – Olympian Mark Spitz
As more people die from COVID-19, businesses will be targeted for negligence claims by family members of employees who became infected with the disease at work.
On August 5, 2020, Erika Iniguez, the Administrator for her Mother’s estate, filed a lawsuit in Kane County, Illinois, alleging that her mother died because she contacted COVID-19 from her husband, who was infected. Her husband was an employee of the Defendant Aurora Packing Company.
Cases like this resurrect similar claims brought by family members in asbestos litigation years ago where lawsuits alleged that family members were exposed to asbestos from their spouses or children who worked in entities with asbestos exposure. In one of the most well-known cases, a California jury awarded Rose-Marie Griggs $27.3 million in compensatory and punitive damages after she contracted mesothelioma, which caused damage to her heart. Ms. Griggs alleged her illness was caused by asbestos fibers carried home in the 1950s on the work clothes of her husband, who installed insulation for an affiliate of Owens-Illinois Inc. Owens-Illinois filed an appeal, but the parties settled the case before the appeal was heard.
In the “Take Home” COVID-19 cases, the biggest issue for a Plaintiff to establish is the causation link that the Plaintiff obtained COVID-19 from the infected family member, who became infected at work because the employer failed to implement proper safety precautions. The Employer will try to establish that the Plaintiff could have become infected/exposed by other means: trips to the grocery store, pharmacy, other family members, friends, etc.
A Plaintiff will allege the Employer failed to perform any of the following activities:
- Warn employees when it knew or should have known of a COVID-19 outbreak in the facility.
- Implement proper protocols, policies, or procedures dictated by the Center for Disease Control and Prevention (“CDC”).
- Maintain a safe work environment in violation of procedures established by the Occupational Safety and Health Administration (“OSHA”).
- Routinely thoroughly clean and sanitize the workplace.
- Provide Personal Protection Equipment (“PPE”) to employees such as masks, gloves, etc.
- Implement engineering controls to prevent the spread of the disease by using highly effective air filters or physical barriers.
- Properly screen and monitor employees by taking temperatures and determining the wellness of employees showing symptoms of COVID-19.
- Implement appropriate leave policies and encourage ill employees to remain at home and not retaliate against employees who comply with such directives.
Save or Minimize an Employer‘s Exposure from Claims
- Comply with all CDC and OSHA guidelines. An Employer with 15 or more employees must comply with all guidelines published by the U. S. Equal Employment Opportunity Commission.
- Implement as much as possible the protocols, policies, and procedures stated above.
- Encourage Federal or State legislation to limit liability for COVID-19 related claims.
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