Over the coming weeks and months, employees will begin returning to work in increasing numbers across the state. As they do, employers will find themselves facing unique challenges created by the risk of workplace exposure to COVID-19. Potential transmission of COVID-19 by employees can create liability concerns for employers. The primary concern for employers is whether they will be entitled to the tort immunity typically provided by workers’ compensation laws in light of the unique nature of the COVID-19 pandemic. Far from being just a hypothetical concern, the first workplace COVID-19 exposure case in Illinois was filed a few weeks ago by the estate of an employee who passed away from complications of COVID-19.

Under many states’ workers’ compensation statutes, a claim under the state workers’ compensation system is the exclusive remedy for an employee who suffers a work-related injury. This is often referred to as the “workers’ compensation bar” or “exclusivity bar” and represents a trade-off for employers and employees. For employees, workers’ compensation laws make it easier for employees to recover from employers for workplace injuries. Many workers’ compensation laws are no-fault laws, meaning the employer must cover the employee’s injury even if it was not at fault for causing the injury. In exchange for lowering the threshold for recovery, the workers’ compensation laws usually prevent employees from suing their employer for additional compensation under a different legal theory for workplace injuries.

Each state’s workers’ compensation laws contain their own unique exceptions to the exclusivity bar which, in certain circumstances, permit an employee to pursue a claim for compensation against the employer despite the existence of workers’ compensation coverage. In Illinois, for example, an employee can get past the exclusivity bar by proving that the employer engaged in “willful and wanton misconduct.” In other words, the employee must establish something more than mere negligence on the part of the employer. In the context of COVID-19 exposure, employers in Illinois can reduce the chances of being found to have engaged in willful and wanton misconduct by ensuring that they stay abreast of the preventative measures recommended by the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and related state agencies.

Employers should conduct a comprehensive review of workplace health and safety practices in an effort to minimize the risk of workplace exposure. That review provides the perfect opportunity for an employer to implement new procedures and practices that have recently become standard practice such as requiring social distancing, installing physical barriers, and increased cleaning and sterilizations of heavily used surfaces and equipment.

In Toney Evans v. Walmart, Inc., the recently filed lawsuit by the estate of a Walmart employee who died of complications of COVID-19, it is alleged that lax safety and cleanliness standards at the Walmart store where Wando Evans, the decedent, was employed caused Evans to become fatally infected by the novel coronavirus. The complaint alleges that the retailer committed “willful and wanton misconduct” by failing to implement workplace safety measures that had been recommended by public health officials to curb the spread of the disease after several employees at the store allegedly exhibited symptoms of COVID-19 infection. The complaint alleges that Walmart acted willfully and wantonly by failing to close the store to the public and ignoring employees who complained of experiencing symptoms consistent with infection. Additionally, the complaint alleges that the store failed to provide employees with cleaning agents and soaps needed to prevent the spread of the virus. It remains to be seen whether these allegations if proven will be sufficient to establish the “willful and wanton misconduct” exception to the workers’ compensation exclusivity bar.

A copy of the complaint is available here.

Super Lawyers named Illinois business and employment law trial attorney Peter Lubin a Super Lawyer and Illinois employment and business dispute attorney Patrick Austermuehle a Rising Star in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex employment, wage law violation, overtime, class action, collective action, non-compete agreement, discrimination and various other types of business and commercial litigation disputes. Our Waukegan and Lake Forest business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0333 or our toll-free number (833) 306-4933.  You can also contact us online here.