A recent article in Risk & Insurance explores the potential impact of COVID-19 liability shield laws for businesses.  These laws would protect businesses from civil suits claiming COVID-19 infections. These shield laws could provide an additional layer of protection from employees suing for workers’ compensation benefits.

Workers’ compensation compensability is different in every state.  In California, to obtain workers’ comp benefits related to COVID-19, an employee would need to prove that they contracted the virus at work and that it arose out of and was in the course of their employment. California has adopted presumptions that make the virus a covered illness, first by Executive Order and then by statute, SB 1159.  However, these presumptions do not have global application to all claims.  And, the presumptions are rebuttable even for covered claims.

Could an employee file a civil suit for workers’ compensation benefits for COVID-19 if they feel their claim was wrongly denied?  I do not see that being successful as workers’ compensation is the exclusive remedy in California as in most states and the Workers’ Compensation Appeals Board has exclusive jurisdiction.  However, such a suit is currently moving forward in Florida, a state that has similar exclusive remedy and jurisdiction statutes. 

In the Florida case of Gutierrez v. Publix Supermarkets, Inc., the employee died in April after allegedly working closely with a coworker who tested positive for Covid-19. The suit alleges that the employer told employees not to wear masks to avoid scaring customers.  The pleadings alleged that the employer “chose its own financial interests over the health and well-being of its own employees, their families and even its customers”.   The employer moved to dismiss, arguing “it is axiomatic that the exclusive remedy for an employee injured in the course and scope of his or her employment is through workers’ compensation.”  The employer’s motion to dismiss was denied in February 2021 and the case is proceeding through discovery.

We saw a similar wrongful death suit in California early in the pandemic, Zuniga v. Safeway, Inc., Albertsons’ Companies, Inc.  As in the Gutierrez case, this suit alleged that “Defendants instead prioritized their own greed over the physical health and survival of their employees”.  We can expect this to be a common refrain in both civil and workers’ compensation cases.  The Zuniga case was remanded from Federal Court to Superior Court in January 2021.

I also recently wrote about other cases brought in Federal Court by employees against their employers alleging COVID-19 related injuries sustained during their employment.  See COVID-19 Infection at Work? Why Not Go to Federal Court Instead of the WCAB! (March 17, 2021) https://highlights.hannabrophy.com/post/102gtbz/covid-19-infection-at-work-why-not-go-to-federal-court-instead-of-the-wcab

Virus liability shield laws could provide businesses with an added layer of protection in these cases.  Given exclusive remedy, these laws should not be necessary in regards to workers’ compensation actions.  Of course, the civil suits we have already seen prove that I am wrong about that.