Outbreaks of COVID-19 at food processing facilities have led employees to file suit against large companies like Tyson and Smithfield for state law claims of public nuisance and breach of duty to provide a safe workplace. Of the 3.4 million food processing employees, about 250,000 work in seafood processing, though most of those workers are employed on land-based facilities. Workers at seafood processing facilities that operate offshore on vessels, however, may be entitled to additional remedies after getting sick if they qualify as Jones Act seamen.
COVID-19 has sparked significant litigation across the country and presents new challenges for courts to decide. While lawmakers are attempting to limit COVID-19-related litigation by passing liability shield laws and introducing penalties for making a practice out of COVID-19 litigation for attorneys, more and more COVID-19-related lawsuits are being filed. One tool available to courts to reduce this caseload is consolidation under 28 U.S.C. § 1407, which authorizes the Judicial Panel on Multidistrict Litigation (MDL) to centralize cases with one or more common questions of fact. Multidistrict litigation was created to help courts navigate the work-related asbestos cases of the 1990s. The federal MDL panel has received petitions to consider MDL for lawsuits related to COVID-19 business interruption insurance and against banks regarding their handling of COVID-19 SBA loans and repayment of agents.
Businesses Reopening During COVID Have Another Concern: Legionnaires’ Disease
August 12th, 2020 — by Gabi Jackson — Category: COVID-19Torts
Recently, an employee at a high school in Kettering, OH tested positive for Legionnaires’ disease in June after the school closed down due to COVID-19. Four water pipes, located in bathrooms and sinks, held Legionella bacteria. Legionnaires’ disease is a concern for schools, businesses, and other entities reopening after coronavirus-related closures. After 21-30 days of disuse, water in pipes becomes stagnant and the chlorinated water, which acts as a disinfectant, is no longer present. Bacteria called Legionella can form in the water system leading to lung infection.
One of the greatest challenges of the COVID-19 pandemic has been balancing the need for essential infrastructure workers to continue working with workplace health and safety concerns. Employers have a general duty to keep the workplace free from recognized hazards and comply with the regulations promulgated by OSHA. OSHA and the CDC have issued joint guidance for returning to work safely and sector-specific guidelines for those workers particularly at risk. Despite calls for OSHA to take regulatory action to protect workers from COVID-19, the agency has relied on voluntary guidelines. Over 6,000 COVID-19-related OSHA complaints have been filed, but OSHA has issued few citations to employers. Now, workers are taking action into their own hands.
Workplace health and safety is a top priority to both employers and employees as they go back to work during the COVID-19 pandemic. Employers are at risk of litigation if they do not comply with the recommendations and guidelines issued by the CDC, OSHA, and state and local officials. Employers are also at risk if they do comply with these COVID-19 mandates and guidance. Some employers are mandating that workers quarantine before returning to work. Workers forfeit their personal time and mobility when they submit to mandatory quarantining. Does quarantining qualify as so essential to the job function that the workers deserve pay for the time, or is it part of weighing the costs and benefits of wanting to return to earning a paycheck? The financial determination of whether or not to pay workers for time in quarantine is not clear.
Assumption of Risk Defenses for COVID-19 Exposure Claims
July 10th, 2020 — by Betsy Lee Montague — Category: COVID-19Torts
Anyone who has ever gone sky diving or bungee jumping has signed a form acknowledging that they are aware of the inherent risks of the sport. Even though no forms are signed, sport fans attending baseball and hockey games are accepting the risk that they might be struck by a baseball or hockey puck. Assumption of the risk is a major legal challenge that often faces individuals seeking damages for injuries sustained while engaged in risky activities.
June 30th, 2020 — by Betsy Lee Montague — Category: COVID-19Torts
As states begin to reopen, businesses are increasingly taking steps to guard against future liability for coronavirus exposure claims, such as by requiring customers to sign COVID-19 liability waivers and taking customer’s temperatures before entering the business.
Public Nuisance Lawsuits Against Employers Over COVID-19: What You Need to Know
June 29th, 2020 — by Gabi Jackson — Category: COVID-19Torts
As businesses re-open in the midst of COVID-19, workers exposed to coronavirus may attempt to hold employers liable for their sickness. In fact, employees of McDonald’s, Amazon, and Smithfield Foods have already filed suits against these companies under a common law cause of action for public nuisance. Although public nuisance is a common lawsuit in the realm of environmental litigation, its use in the employment context is rare since federal, state, and regulatory bodies typically have purview over workers’ claims. As employees bring these claims, it is unclear whether courts will allow the claims or plaintiffs must seek recourse another way.
Last year, a commercial diver hired to assist with a National Park Service project to restore the Point Reyes National Seashore in California filed suit against two companies hired to complete the restoration. Matthew Zugsberger made several claims against the companies, including general maritime law claims for maintenance and cure, negligence, wrongful termination, fraud, and labor claims. In September, a court ruled on the maintenance and cure claims, finding that Zugsberger must be compensated for injuries incurred during the project.
