COVID-19 is at this point ubiquitous, affecting our daily lives in myriad ways.  But it has not altered our continuing need to work and generate income.  Many of us have reconciled that need by adopting alternative work arrangements, such as working from home or (for working parents) employing staggered work hours.  There are many, however, who do not have that luxury.  These are the essential workers.  They include doctors, nurses, EMTs, and police officers, as well as those who ensure that we are able to carry on with everyday life, such as supermarket employees, waste disposal professionals, truck drivers, and delivery workers.  In the midst of a pandemic, these individuals must continue to work.  Most employers have already adopted health and safety measures designed to protect these employees to the greatest extent possible. Despite those efforts, for essential employees, there is still a risk of contracting the virus that is inherent in going to work.

On April 6, the estate of one such worker (a deceased Walmart employee) filed perhaps the nation’s first wrongful death action arising from COVID-19. In Toney Evans, Special Administrator of the Estate of Wando Evans v. Walmart, Inc., et al., No. 2020L003938, out of Cook County, Illinois, the estate alleges that the decedent contracted COVID-19 while working for defendant Walmart and that Walmart committed “willful and wanton misconduct” by failing to implement proper workplace safety measures. The estate argues that Walmart owed a duty of reasonable care “in keeping the store in a safe and healthy environment” and that it should have taken all of the preventive measures recommended by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA), including store sterilizations, strict social distancing guidelines (for employees and customers), and the provision of personal protective equipment. According to the estate, “As a direct and proximate cause of [Walmart’s alleged failure to take those steps], the decedent was infected by COVID-19 and ultimately died . . . .”

When an employee is injured on the job, his or her claim for damages is ordinarily handled by the workers’ compensation system. In nearly all states, that system is an employee’s sole source of recovery for a workplace injury or occupational disease. It bars a direct claim for damages against an employer. This preclusive effect is sometimes referred to as the “exclusivity bar.” Of course, there are exceptions, and while the standard is usually quite high, when those exceptions are satisfied, they will allow an employee to pursue an employer directly.  In the Illinois COVID-19 litigation, for instance, the deceased employee’s estate attempts to avoid the exclusivity bar by alleging that Walmart acted willfully and wantonly (i.e., with intent) in failing to implement the preferred health and safety measures.  This argument is designed to invoke one of the most common exceptions to the exclusivity bar: the intentional-wrong exception. Whether through statute or case law, most states have adopted some version of this exception; although it is worth nothing that a minority of states, such as Pennsylvania, still do not recognize it.

It remains to be seen whether the estate of the Walmart employee will be successful in avoiding the exclusivity bar and advancing that litigation past the inevitable motion to dismiss. The results will, of course, depend on certain nuances in Illinois law, as well as the judicial appetite (if any) for carving out a limited exception for essential employees who are faced with these unique and unprecedented circumstances. But if the estate is successful, and if plaintiffs in other jurisdictions are also successful in advancing the same or similar arguments, then this could signal an erosion of the exclusivity bar in the context of COVID-19 and would undoubtedly trigger a wave of litigation across the nation.

As of April 20, the CDC has tallied nearly 750,000 cases of COVID-19 in the United States and nearly 40,000 deaths.  Every state has reported cases, with many reporting several thousand, and in some instances, tens of thousands.  Although we cannot be sure until an official study is performed, it is possible that a significant portion of those cases were contracted in the workplace.  This demonstrates the extraordinary scope of this pandemic and the ongoing threat to employees.  Given that scope, if litigation arising from employee exposure to COVID-19 gains traction and is not otherwise slowed by the exclusivity bar, then we could see those matters consolidated into mass tort actions.  Navigating such actions would be complex, time-consuming, and resource intensive.  Any litigants that are ultimately faced with COVID-19-related litigation, and the law firms they hire to represent them, would thus be wise to explore and capitalize on all available support services.  Until then, the progress of the Illinois litigation (and any future actions) should be monitored closely.

Reprinted with permission from the April 24, 2020, issue of the Verus LLC blog. © 2020 Verus LLC. All Rights Reserved. Further duplication without permission is prohibited.

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