By: K. Brad Oakley
In what has already become a minefield of potential employer liability related to the COVID-19 pandemic, the nation’s largest employer – Walmart – is facing a wrongful death suit following the death of one of its Chicago-area employees after the employee allegedly passed away from COVID-19 health complications. As with the virus itself, questions abound about the extent of employer liability for alleged workplace-related COVID-19 exposure and even fatalities. The lawsuit against Walmart is one of the first to receive national attention and may be the model for subsequent lawsuits to follow.
Wando Evans, who was fifty-one-years-old and had been employed by Walmart for approximately fifteen years, died on March 25, 2020 just two days after reportedly being sent home from work with COVID-19 symptoms. Another store employee passed away four days later also allegedly related to COVID-19 complications. According to the complaint filed by Evans’s family on April 6, 2020, store managers knew and failed to warn other employees that several employees were exhibiting symptoms of COVID-19. Similarly, the complaint claims that store managers failed to prohibit employees exhibiting signs of COVID-19 from returning to work.
Additionally, the complaint alleges that Walmart failed to implement social distancing guidelines put in place by federal and state governments, failed to supply employees with personal protective equipment (PPE) designed to prevent the spread of the virus, and failed to follow written guidance for minimizing the risk of exposure in the workplace developed specifically for employers by the Occupation Safety and Health Administration (OSHA) and the Center for Disease Control and Prevention (CDC).
The Evans family claims that Walmart’s alleged conduct as generally described above was “willful and wanton”, in reckless disregard for the safety and health of its employees and was the proximate cause of Evans’s COVID-19 infection and ultimate death. A copy of the complaint can be found here. The complaint does not cite a specific OSHA regulation to support its claims, but instead alleges that Walmart failed to follow OSHA’s Guidance on Preparing Workplaces for COVID-19. This guidance document can be found here. Employers should be aware, however, that OSHA has identified the two most relevant standards that apply to preventing COVID-19 exposure in the workplace as its PPE standards (29 C.F.R. 1910 Subpart I) and the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act of 1970).
This lawsuit is likely just the tip-of-the-iceberg for litigation against employers in the fallout of the pandemic. COVID-19 lawsuits arising out of an alleged workplace exposure present a web of interrelated legal issues such as workers’ compensation, OSHA enforcement, employee benefits, and premises liability. There are a multitude of questions that will arise in the coming months and years, such as:
- Are these types of claim precluded by workers’ compensation laws?
- Are an employer’s employee benefits programs up-to-date and effective in the COVID-19 world?
- Does an employer have sufficient preparedness and response plans for infectious diseases?
- Will OSHA seek enforcement actions against employers who fail to follow the agency’s published COVID-19 guidance?
- How will plaintiff employees prove they were infected with the virus in the workplace?
- How will juries in civil lawsuits view employer liability when so much was unknown about the virus and the scarcity of personal protective equipment in the early stages of the pandemic?
- Is there potential criminal liability for company officers and executives in the event of a workplace exposure or death?
These questions highlight the importance of employers staying abreast of and implementing the most recent guidance and best practices published by the CDC, OSHA, and other national and state government agencies.