October 26, 2020

Volume X, Number 300

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October 23, 2020

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COVID-19 Related Workplace Deaths: Rise Of Wrongful Death Claims

This week’s spotlight is on a category of COVID-19 related workplace complaints that undoubtedly has caused many sleepless nights for employers around the country: deaths caused by COVID-19 infections allegedly connected to the workplace. 

This week’s update to the tracker includes two such cases – one relates to the alleged wrongful death of an employee from COVID-19, and the other concerns the death of an employee’s spouse.  In each case, the plaintiffs allege a lack of effective institutional response to the virus, as well as a failure to warn employees who may have come in contact with the COVID-19 virus in the workplace. The allegations in these cases demonstrate the importance of employers implementing a plan of action to mitigate the dangers to the workforce. 

First, in Iniguez v. Aurora Packing Company, Inc., the plaintiff, administrator of a deceased woman’s estate, filed a wrongful death and survival action against the defendant, a meat-packing facility. The defendant employed the decedent’s husband as a butcher. The plaintiff alleges that in late April 2020, the decedent’s husband contracted COVID-19 while at work, and infected his wife, who died from the virus on May 2. According to the plaintiff, the defendant knew employees had contracted COVID-19 at its facility, yet did nothing to mitigate the spread of the virus in the facility. The plaintiff alleges that the defendant was negligent by, among other things, failing to warn employees of a COVID-19 outbreak and failing to implement an infectious disease preparedness and response plan or infection prevention measures consistent with CDC and state department of health guidelines. The plaintiff also asserts that the defendant actively created risk, including by “choosing not to”: provide employees with PPE, implement engineering controls to prevent the virus from spreading, take reasonable measures to allow for social distancing, screen and monitor workers, implement and communicate leave policy, and provide handwashing breaks, hot water, and sanitizer.

In Montgomery v. Prevarian Senior Living, LP, the plaintiffs, the surviving family members of a deceased assisted living facility worker, allege wrongful death and gross negligence under Texas law. The plaintiffs allege that both the deceased and their daughter, one of the plaintiffs, worked for the assisted living and memory care facility, and both were exposed to COVID-19 when assigned by their employer to sit for hours at a time, unprotected, with a resident whom the employer knew (but did not tell its employees) had tested positive for the virus. The plaintiffs allege that assisted living facilities “have often been described as “epicenters” for COVID-19,” and that the deceased in particular was at higher risk of experiencing severe COVID-19 complications, including death, due to being overweight and a minority. The plaintiffs allege that the employer owed the deceased a duty to provide a safe workplace, including: 

  • To warn the deceased that a resident with whom she was required to interact for an extended period of time had tested positive for COVID-19

  • To consider reasonable risk factors before assigning the deceased to spend time in a room with an infected resident

  • To not place her at increased risk of exposure to COVID-19 without adequate personal protective equipment

  • To implement safety protocols to prevent the spread of and exposure to COVID-19; and  

  • To seek out and remove sources of harm on the premises controlled by the employer

The plaintiffs further allege that with conscious indifference the employer created an extreme risk of harm by failing to inform the plaintiff-daughter and other co-workers of the resident’s infection or to adequately address the danger before instructing the plaintiff-daughter and other workers to work near the resident.  

As the pandemic continues, the unfortunate reality is that we expect to see more illness among employee populations, and more litigation alleging that an employer’s alleged unpreparedness and lack of transparency relative to COVID-19 resulted in the spread of the virus among an employee population, and caused sickness or even death. As ever, mindful employers would do well to understand and follow the public health guidance coming out at the local, state, and federal levels. 

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 232
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Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment
Partner

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

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Mark Wallin, Attorney, BT, Chicago, Labor Employment
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In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of employment matters including wage and hour class and collective actions, as well as complex, multi-plaintiff and single plaintiff employment discrimination claims brought not only by private plaintiffs but also initiated by the Equal Employment Opportunity Commission (EEOC).

Mark has successfully represented companies of virtually all sizes, litigating matters across multiple areas of the law, from the pleading stage through appeal. He has also represented clients in arbitrations and before administrative bodies.

Mark vigilantly stays abreast of cases, laws, and trends that may impact his clients coming out of the courts, Congress and the state legislature, as well as the U.S. Department of Labor, the EEOC, and state regulatory agencies. He strives to keep a watchful eye on how labor and employment related laws are evolving so as to proactively advise clients.

In addition to his regular legal practice, Mark has undertaken several pro bono cases including trying criminal jury trials in state and federal court, and representing indigent plaintiffs in civil rights matters as part of the federal Trial Bar.

Mark began honing his litigation skill during law school when he interned at the U.S. Attorney’s office for the Northern District of Illinois, where he handled both civil and criminal issues. He also interned for a judge on the U.S. Court of Appeals for the Seventh Circuit, which gave him a unique vantage of seeing the issues from the court’s perspective.

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Sana Swe Employment Attorney Barnes & Thornburg Los Angeles, CA
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Sana leverages her first-hand knowledge of both sides of the employer-employee relationship to help clients navigate a range of issues and challenges. She routinely advises clients regarding employment matters arising from mergers, acquisitions, layoffs and reorganizations, and potential liability resulting from employment practices, policies, and actual and threatened litigation.

Sana represents clients in an array of employment-related areas, including unlawful discrimination, harassment, and retaliation, family and medical leaves of absence under state and federal law, disability...

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