COVID-19 Wrongful Death Lawsuits Filed Against Employers
As the number of individuals infected with COVID-19 continues to rise, so too do the number of lawsuits filed against employers who fail to take reasonable actions to protect their employees in the face of this devastating pandemic. In particular, a number of families have brought wrongful death lawsuits against employers of their loved ones who have passed away due to COVID-19, alleging that their deaths were entirely due to the employer’s negligence surrounding COVID-19 measures.
While workers’ compensation is the exclusive remedy for claims like these in Rhode Island and effectively bars employees from suing employers for negligence, if an employer does not have worker’s compensation insurance, then that employer can be sued for negligence, and this allows for additional damages, such as those for pain and suffering. There are in fact a number of employers who are exempt from carrying worker’s compensation insurance in Rhode Island, such as certain agricultural, domestic service, and real estate businesses, as well as sole proprietors and partners. Below, we discuss some of the important wrongful death cases that have been brought against employers in connection with COVID-19 thus far:
The Cases
In one case. the plaintiff is alleging that her husband‘s employer failed to follow the state’s COVID-19 directives to reduce the spread of the virus – specifically, failing to provide appropriate safety equipment – resulting in her husband’s exposure to COVID-19. This particular complaint alleged that the employer’s conduct was wanton and willful, which is indicative of intentional or reckless behavior that disregards the safety of others. However, it is important to note that Rhode Island does not recognize an independent tort for willful and wanton conduct.
In another case, the spouse of a deceased crew member filed a wrongful death action against the crew member’s employer (the vessel owner), arguing that they were negligent by arranging for the vessel’s captain to travel to cities that were on lockdown due to being COVID-19 hotspots, and then in allowing that captain (who tested positive for COVID-19) to remain aboard the vessel while knowing that he was infected with COVID-19, which led to plaintiff’s husband and other employees becoming infected with COVID-19 and dying. The lawsuit alleges that the employer caused this death by failing to provide employees with a safe workplace and protect them, as well as failing to train crew members regarding how to avoid contracting and spreading COVID-19.
Finally, the third case involves another spouse of a deceased employee who alleges that her spouse was exposed to COVID-19 at work because his employer specifically instructed workers not to wear masks at work unless they were performing their specific job functions. The plaintiff is alleging that the employer was negligent by failing to provide employees with a safe place to work, train them regarding how to avoid contracting COVID-19, provide them with personal protective equipment, test them, quarantine those who had been exposed, apply social distancing measures, properly clean areas, warn employees of the dangers of COVID-19, provide medical treatment, and follow its own safety rules.
Causation & Reasonability
The potential success of these lawsuits will ultimately come down to whether employers took reasonable measures to keep employees safe, as well as whether plaintiffs can prove causation (i.e. whether the decedent definitively contracted COVID-19 at work). In evaluating whether an employer complied with reasonable measures, the court can look to agency guidelines, such as the CDC’s Interim Guidance for Businesses and OSHA’s Guidance on Returning to Work, as well as any associated documents, such as the CDC’s Public Health Recommendations for Community-Related Exposures and Guidelines for Cleaning and Disinfection for Community Facilities. While many of these guidelines are released to the public as technically being non-mandatory recommendations, in evaluating whether employers took reasonable steps to protect their employees, they are the only agency guidelines that the courts have to rely on, and in that sense, are very important in terms of evaluating an employer’s actions. In this sense, OSHA’s General Duty Clause, which requires that employers ensure that a place of employment is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees,” will likely be the basis for violations. In this regard, it is important to note that failing to notify employees about confirmed COVID-19 cases will most likely be viewed as a lack of reasonability and a violation of OSHA’s General Duty Clause.
If You Have Lost a Loved One Due to Wrongful Death, Contact Rhode Island Lawyer Michael Kiselica
Wrongful death claims in Rhode Island can be complex, warranting that if you have any questions about the loss of a loved one due to negligence, it is essential that you consult with an experienced Providence wrongful death attorney. Contact the Kiselica Law Firm today to schedule a consultation and find out more.
Resource:
insurancejournal.com/news/national/2020/08/27/580463.htm
