“Anytime you have a tragedy or a crisis that causes rapid change, the business community reacts and some companies work to prosper and fill a need,” Anthony Russo, an attorney with a practice focused on consumer justice and personal injury, said. “The legal industry is the same — when there’s a new happening, it creates a cottage industry.”
Given the scope and breadth of the coronavirus, however, Russo admitted the situation is unprecedented and that the legal community at large is in relatively “uncharted territory.” His closest comparison, from a legal trend standpoint, is a natural disaster like a hurricane. Although those circumstances tend to be legal actions against insurance companies, Russo is expecting some of those to come out of the coronavirus, too. But even more so, he foresees lawsuits by employees against businesses deemed “essential” during the pandemic and allowed to remain open.
“I don’t know that in our lifetime companies and corporations will have dealt with anything like this,” Russo said, referring to the coronavirus, but also what he expects to be a broad range of legal actions out of it. “This will be very unique. It will be met with very, very creative lawsuits and theories of liability in efforts to get past a summary judgment.” A summary judgment is when a judge rules on part or all of a lawsuit before it goes to trial.
Already, Walmart Inc. has been sued by at least one family of a longtime worker in Illinois who contracted COVID-19 and died as a result. Workers at Amazon have gone public and alerted elected officials about not feeling adequately protected against the virus while they continue to work, and allegedly are left without adequate supplies of masks, gloves and sanitizing products. There have been calls for a labor investigation into conditions for those working during the pandemic, while Amazon has tacitly admitted that it’s struggling to get workers all of the essential supplies they need to be and feel protected as they work to fulfill the orders from people in their homes. Business groups in California are already panicking, last week asking Gov. Gavin Newsom to immediately broaden limits on liability for companies operating during the pandemic.
Even if that were to happen, Russo said plainly: “You’ll never outrun lawsuits.”
For several weeks at the start of lockdowns and orders in most states for nonessential businesses to close, there was confusion among companies over not only what is considered “essential,” but how an essential business should operate. Legal experts do not expect this to provide an escape from liability, however.
If a worker falls ill with COVID-19, there will likely be a workers compensation claim. If a worker dies after contracting COVID-19, there will likely be a wrongful death claim by his or her family, like in the recent Walmart case. If workers feel they are not being made aware of a company’s efforts to protect them during the pandemic, there could even be larger group or class actions by employees claiming unfair labor practices a little further down the line, when the full effects of working during the pandemic are more clear.
“It is true that this is a time of great confusion and uncertainty,” Leticia Saucedo, a law professor at UC Davis focused on employment and labor law, said. “Nonetheless, employers have a duty under state and local laws to maintain a safe working environment, even if the business is an essential one. Issues of exigency might provide a defense for employers in hindsight, but it does not diminish an employer’s duty.”
Saucedo is expecting, at least at first, a surge in worker compensation lawsuits, which typically revolve around claims that an employee was injured on the job due to an employer’s intentional conduct. In the case of the coronavirus, this could mean an employee claiming they fell ill with the disease because they did not have adequate protective equipment, like masks and gloves. Maybe even because they were not given adequate breaks needed to wash their hands.
“We have stories of workers seeking [personal protective equipment] on the frontlines in the health-care, food processing and service industries,” Saucedo said. “We have started to hear about the mass spread of the virus in meatpacking and processing plants in South Dakota and the Midwest.”
Legal experts unfortunately expect stories of work-based spread of the coronavirus to continue. And Saucedo noted that, while personal injury law can have a reputation of “ambulance-chasing,” on the whole she does not think “claims around safety are spurred by personal injury lawyers as much as by workers seeking protection.”
“Employers still have a duty to maintain a safe workplace, even during a pandemic, and their actions will be judged by what the reasonable employer would do under similar circumstances,” she added.
How extensive the incoming wave of coronavirus cases will be is as yet unclear, but Russo and Saucedo agreed it’s likely to be extensive.
“Once the cottage industry is born, I think there is going to be a lot of latitude,” Russo said. “I’d expect [coronavirus-related litigation] to be fairly large and last a fairly long time, unless there’s a federal action to stop it.”
At the moment, nothing of the sort is being formally considered. However, on Wednesday evening, Larry Kudlow, national economic director for the Trump White House suggested on CNBC that businesses should have no liability when it comes to what he described as “false lawsuits” from employees who may have contracted the coronavirus while on the job. The U.S. Chamber of Commerce, a conservative business lobbying group, also last week wrote an open letter citing the increased concern among businesses around liability when it comes to the virus. The group urged the implementation of a “safe harbor” for liability claims for companies that are found to be following public guidelines for operation. Courts also have the power to limit liability through rulings, although that can take years of major litigation.
As for whether coronavirus litigation could reach the level of other mass torts, like mesothelioma, talcum powder and RoundUp, which each have racked up between 25,000 and 50,000 individual claims of injury and death, it’s unclear how many workers will ultimately be affected by the coronavirus.
“I really hope we’re not going to see as many people injured,” Gabrielle Wirth, a partner with Dorsey & Whitney focused on employment law, said. “The thing with mesothelioma, for example, is that it results in a pretty slow, painful death, and that’s more than we can predict here.”
Wirth, nonetheless, expects a lot of employee litigation to come out of the coronavirus, including infected workers and families of infected workers suing employers for gross misconduct, particularly if companies don’t pay attention to state and local orders for ongoing businesses. Currently, essential businesses in states like California and New York have been told that they must enforce social distancing among employees and customers, as well as mask-wearing and increased levels of cleanliness and access to hand washing.
Although, in Wirth’s experience on the consumer side so far, essential businesses seem to be “pretty good” about enforcing new mandates, she thinks incoming litigation will hinge on “a lot of argument over what experts said and when.”
She pointed to the conversation around masks, which started with experts telling the public they weren’t that effective against the coronavirus and ended with everyone being urged to wear one when outside their home. Also talk by some medical professionals that liquid sanitizer should not be a go-to for disinfecting hands, because soap and water works better.
“That’s a real challenge, so what else can you do reasonably?” Wirth said. “If you’re a good employer, you think creatively. But there are pluses and minuses for almost every fix you can think of.”
Another thing putting essential businesses in a tough spot on the liability front is the emerging medical information around who is most susceptible to contracting and getting a severe case of COVID-19, like the obese or those with an underlying respiratory condition.
“Right now, an employer can send people home if they show signs of being infected, but it cannot single people out for being obese or having high blood pressure, even though they’re more susceptible,” Wirth said.
Ultimately, all an employer can do is enforce state and local mandates in their workplaces to the letter, experts said. And conspicuously and continually communicate to employees what exactly is being done to protect them.
Communication alone won’t prevent the wave of coronavirus lawsuits that at the moment seems inevitable, but Wirth, who is not expecting the pandemic to suddenly disappear, sees one good outcome from legal action.
“Hopefully, the lawsuits will keep the current protections in place at the forefront for businesses, even as we flatten the curve,” she said. “We’ll just have to be ok with workplaces and businesses being slower than expected to start back up.”
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