Any suit seeking compensation from an employer for its employee's exposure to COVID-19 is going to be "very fact-driven" and the employer is likely to claim it didn't know what precautions were needed. (Photo: Shutterstock)
As coronavirus infections surge across the country, some courts are grappling with a novel type of legal question: can an employee who contracts COVID-19 recover damages from an employer for failing to mitigate the risks of contracting the virus?
Already a handful of employers has been hit with litigation in connection with employees who became sick, and who claim safety precautions were missing from the workplace.
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But major hurdles face such suits, from causation to the standard of proof under the workers' compensation law, some lawyers said.
Negligence claims
New Jersey Transit faces a negligence and wrongful death suit by the family of a commuter train conductor who died after allegedly contracting COVID-19 on the job. The suit, filed Oct. 22 in Essex County Superior Court, and first reported on NJ.com, says Joseph Hansen contracted the virus in March. He felt ill but New Jersey Transit instructed him to continue working, the suit claims. He later gave the virus to his wife, Denise Hansen, due to New Jersey Transit's failure to enact safety guidelines and use protective equipment, according to the suit.
The Port Authority Trans-Hudson Corp. also faces a wrongful death suit on behalf of a worker who died after he allegedly contracted COVID-19 from hugging a co-worker. Robert Elijah, 61, allegedly contracted the virus March 15 from a co-worker who later tested positive. He was hospitalized April 3 and died 20 days later, experiencing a "horrible and protracted death" after suffering heart and kidney failure. His suit was filed on June 11 in Hudson County Superior Court.
And the state's Department of Military and Veterans Affairs has received a tort claims notice on behalf of Monemise Romelus, a certified nursing assistant at the Menlo Park Veterans Memorial Home who allegedly died after contracting the coronavirus at work. Romelus, 61, contracted the virus in April and died in May. The notice that her family filed is a step that comes before filing of a lawsuit against state defendants.
Besides the notice for Romelus, the state has received at least 27 other claims related to the Menlo Park facility where she worked, most on behalf of residents. Lawyers for the claimants say management there was grossly negligent in failing to employ masks or gloves or take other precautions to prevent the virus's spread.
Elsewhere, employers are seeing a handful of suits over employees contracting COVID-19. A suit filed in May in Philadelphia's Court of Common Pleas seeks to recover from the operator of a Souderton, Pennsylvania, meatpacking plant on behalf of Enock Benjamin, a plant employee who died from COVID-19 at age 69. The defendants include plant operator JBS S.A. of Brazil and its subsidiary, Pilgrims Pride. The Philadelphia suit claims the plant operators disregarded guidelines issued March 9 by the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration about how to mitigate the spread of the coronavirus.
Also in May, a suit filed in Travis County, Texas, District Court seeks to recover on behalf of Maurice Dotson, a certified nurse's aide at a nursing and rehabilitation center in Austin. The company didn't provide masks and other protective gear, which exposed patients and staff to infection, the suit claims.
Hurdles
Such cases represent novel issues, and more of them are likely to be filed, at least until courts grapple with the issues they present, said Cynthia Jacob, a labor and employment lawyer at Fisher Phillips in Murray Hill.
The key challenge facing plaintiffs who file such cases is causation, she said. It's impossible to know where someone contracted the coronavirus, she said.
"I think the plaintiffs are going to have a very, very difficult time proving causation, or proving the point of contraction, for this purpose, when it's flying around in the air, which we know the COVID virus does. How do you prove how you picked it up?" said Jacob.
Any suit seeking compensation from an employer for its employee's exposure to COVID-19 is going to be "very fact-driven" and the employer is likely to claim it didn't know what precautions were needed to provide protection, Jacob said.
In the event that any such case makes it to a jury, claims that an employee went to work amid the pandemic because his job doesn't permit remote work and he won't get paid if he stays home would stir sympathy, Jacob said. But such a case is going to see causation raised at the summary judgment stage, or even earlier, as a failure to state a claim motion.
But suits seeking to hold employers responsible for an employee's coronavirus infection have been rare because would-be claimants are taking an easier route, according to Harris Freier, a labor and employment lawyer at Genova Burns in Newark.
Under the workers' compensation law, an employee seeking to sue his employer for an injury taking place on the job must prove the employer intentionally put them at risk, a difficult standard to meet, said Freier. But meanwhile, a law signed by Gov. Phil Murphy on Sept. 14 makes it easier for any employee who contacts COVID-19 to qualify for workers' compensation benefits, said Freier. That law creates a "rebuttable presumption" that for essential employees working during the pandemic who contract COVID-19 the infection is work-related, he said. As a result, the employer seeking to oppose the award of benefits bears the burden of proving the transmission did not take place on the job, Freier said.
"If you do get COVID at work, you're unlikely to be able to get damages against your employer. The most you could do is you could get leave, and if you've received some type of adverse action, such as you're terminated because you got COVID, that violates a number of laws," Freier said.
In addition to seeking benefits from workers' compensation, workers who contract COVID-19 are bringing whistleblower cases under the Conscientious Employee Protection Act, and the New Jersey Law Against Discrimination, instead bringing a wrongful death claim.
CEPA claims over coronavirus typically allege a worker was somehow punished for complaining about inadequate safety precautions, and COVID-related LAD claims often pertain to workers ordered to come back into the office against their wishes, Freier said.
"Plaintiffs lawyers are big fans of CEPA and N.J. LAD because they get attorneys' fees if they are the prevailing party, and punitive damages and attorneys' fees," Freier said. "The proofs are pretty easy, both for CEPA and the LAD, to make a prima facie case," he said.
Other fallout
Employers might not worry much about getting sued by employees who contract COVID-19 on the job, but OSHA and the threat of bad press serve to deter them from providing unsafe conditions, Freier said. In addition, unions are raising unsafe work conditions as an impetus to organize in some places, he said.
But case law provides an exemption from the lofty intentional risk standard for workers' comp cases, said Paul da Costa of Snyder, Sarno, D'Aniello, Maceri & da Costa in Roseland. He represents the estate of Romelus, the nursing home worker who died after contracting the coronavirus at the Menlo Park veterans home.
The exception, which requires a showing of reckless and willful conduct by the employer, will apply to Romelus' case, said da Costa. That includes policies barring nurses' aides from wearing masks for protection and imposing punishment if they did wear a mask, da Costa said.
New Jersey Transit and Port Authority Trans Hudson might have found themselves targets of suits because the workers' compensation program doesn't apply to railroad workers.
Don Palermo, the Media, Pennsylvania, lawyer who filed the suit on behalf of former Port Authority Trans Hudson employee Elijah, links his client's death to an alleged PATH policy barring workers in the tunnels between New Jersey and New York from wearing face masks.
Palermo is confident he can link Elijah's death to the hug with the co-worker, and intends to present expert testimony from an epidemiologist.
"They called him big dog because he was a very friendly, gregarious guy. None of his family got it. None of his friends got it. All he did was go to work and come home. By all accounts he was meticulous about protecting his family," Palermo said.
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Charles Toutant
Charles Toutant is a litigation writer for the New Jersey Law Journal.
