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Do Employers Have a Duty to Keep Employees Safe During COVID-19 Pandemic?

Employers must grapple with whether to reopen their doors as the COVID-19 pandemic ravages the world. If businesses do open their doors, they may be responsible for keeping their employees safe from COVID-19.

Wando Evans worked at a Walmart Supercenter in Evergreen Park, Illinois. Evans died on March 25 from complications of COVID-19. His estate’s wrongful death lawsuit alleges that at least one other employee of the same Walmart died four days after Evans, and that management knew that several other employees exhibited symptoms of COVID-19 prior to their deaths.

Evans’ estate accuses Walmart and the owner of the retail shopping center of being negligent and willfully ignoring employees who complained to management that they suffered from COVID-19 symptoms.

The lawsuits allege that Evans’ death was preventable if the retail store and landlord had disinfected the store, provided masks and other protective equipment to employees, enforced social distancing guidelines, and generally followed state or CDC guidelines on prevention of COVID-19.

The lawsuit also alleges that the landlord was negligent by failing to close the Walmart store and other businesses affected and/or failing to inspect the Walmart store to ensure that it was enforcing CDC and state guidelines.

On March 31, Walmart announced a series of new safety measures for employees, including temperature checks and the issuance of safety equipment such as gloves and masks.

COVID-19What is the Employer’s Responsibility During the COVID-19 Pandemic?

Businesses are expected to act with reasonable care with customers and employees alike. The pandemic will require significant evaluation as to what is reasonable under the circumstances.

First, it must be determined whether it is safe to be open at all. As a grocery retail store, Walmart is deemed “essential” by most states. A closure may have dire consequences, especially if it is the only grocery store available. However, many businesses will not be exempt. A plaintiff would have a very strong case if a business violated a state shelter order and an employee becomes ill or dies because of COVID-19. This would constitute negligence per se.

The issue becomes more difficult if a business is deemed essential or if a state lifts the shelter order. The analysis shifts from “should a business remain open” to “what steps can reasonably be taken to safeguard against the virus?” Walmart was able to announce new safety measures less than a week after Evans died. However, medical and protective equipment are hard to come by right now – impossibility is often a viable defense to breach of a legal duty.

Causation may also be difficult to determine. The virus has a long incubation period. Proving causation may require tracing the employees’ steps in the two weeks prior to detection of the virus. Evans may have contracted the virus while working at Walmart. He may also have been exposed while waiting in line at the ATM machine, picking up dinner at a restaurant, or visiting a sick relative at the hospital.

Parties cannot ask Evans where he had been in the two weeks before he was diagnosed with the virus because he’s gone. Attorneys cannot retrace Evan’s steps while the shelter orders are in effect. Walmart would have a significant advantage if Evans cannot conclusively prove that he was infected while at work.

Do COVID-19 Affected Employees Get Worker’s Compensation?

Evan’s case will likely be resolve in the worker’s compensation system instead of the civil courts. Most states mandate that conflicts regarding workplace injuries be resolved exclusively as a worker’s compensation claim.

Does Employer Insurance Coverage Apply?

Most businesses do not have cash on hand to settle a lawsuit and instead rely on their insurance companies to pay out any settlement. However, many insurance policies do not cover pandemic related incidents. Other policies may only cover pandemic related cases if a state has issued orders regarding the pandemic.

States that have lifted their shelter orders may have inadvertently left businesses without insurance coverage. If you are an employer, check with your insurance policy and your insurance adjuster to determine if you will have coverage for a lawsuit or if you need to hire your own attorney.

Do I Need an Employment Lawyer If I Have Been Affected by COVID-19?

If you feel you have been wrongfully treated or terminated because of the COVID-19 pandemic, an employment attorney can help defend your rights. You may be entitled to damages for your loss.

If you are an employer, an employment attorney can defend and protect your rights during these hard times.

Jason Cheung

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