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As COVID-19 has spread throughout America, the workforce has split into two groups: those who can work from home, and the “essential” workers who remain on the front lines, serving the public. In addition to healthcare workers, essential employees include grocery store clerks, bank tellers, and people operating public transportation systems. While they serve the critical purpose of maintaining some semblance of normalcy, these workers are at increased risk of exposure. As workers fall ill and, in the worst cases, die, companies are starting to wonder whether COVID-19 places them at increased risk of wrongful death suits. And if so, how should they respond?

Walmart has already experienced its first wrongful death lawsuit, filed by the estate of a worker who contracted COVID-19 and died. Other companies worry they’ll be next. With that in mind, how vulnerable are businesses to such lawsuits? And if they come, how likely is it the suits will be successful?

Proving Point Of Infection

One of the most significant issues with wrongful death lawsuits targeting places of employment in relation to COVID-19 is that it’s difficult to prove the point of infection. The case against Walmart, for example, alleges that the worker who died contracted the virus at work because the store failed to sanitize properly. The suit also alleges the store failed to provide necessary protective equipment and to warn employees of the risk of disease transmission. Meanwhile, the store contends they took all the required precautions. Amid the confusion, the biggest challenge facing the courts and the families of those bringing lawsuits will be proving that the deceased contracted the virus at work.

Realistically, it’s difficult for anyone to prove exactly where they contracted COVID-19. Though workers may be able to demonstrate their companies put them at increased risk, it’s challenging to establish the site of infection. Efforts to do so could trigger OSHA inspections and expensive fines, but will likely not provide enough legal weight to make a company liable.

Establishing Standing

Another issue regarding wrongful death lawsuits is standing. Death, particularly premature deaths, are tragic, but that doesn’t mean anyone who knew the deceased can bring a wrongful death lawsuit. Instead, most states use a tiered system: an immediate family member can recover economic losses, but only spouses and minor children can claim emotional damages.

For low-income workers who have subpar health insurance, even recovering economic damages would be significant. That’s because economic damages include not only future wages, but also medical expenses related to the loss. Since COVID-19 treatment can be quite expensive, especially for those with high-deductible or catastrophic insurance coverage, filing a wrongful death suit may be the only viable option for avoiding medical bankruptcy.

Gig Economy Concerns

Finally, a significant subset of those working on the front lines of the COVID-19 pandemic are gig workers. These workers include food delivery personnel, Uber drivers, and more. While the world is eliciting unprecedented demand for the services of these workers, the workers themselves don’t have any additional protection from the virus. It wouldn’t be surprising if the family member of a gig worker who falls ill and dies decided to sue the company their loved one contracted for. Would such a suit be successful? Gig economy companies have faced increasing pushback from consumers and workers in the last year or so, and the pandemic represents a possible challenge to this business model.

Most lawyers seem to agree that wrongful death suits related to COVID-19 are unlikely to succeed. Because the origin of the virus is difficult to track conclusively, it will be challenging for people interested in filing suits to prove where a deceased loved one’s point of infection. Though it may be possible to demonstrate worker endangerment, showing wrongful death will likely remain prohibitively tricky.

2 Comments

  1. Gravatar for Joel
    Joel

    has anyone seen a recent wrongful death case arising from a pool, I believe a community association pool?

    1. Gravatar for Aaliyah Rashed
      Aaliyah Rashed

      What do you think about a wrongful death law suit when a nursing home resident has forced exposure to the virus, catches it and dies due to state mandates for nursing homes to house sick/recovering covid patients?

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