• Dr. Soumi Eachempati

How can employers learn from the hospital industry and defend themselves from Covid-19 lawsuits?

Updated: Aug 12, 2021

As many sources have started to notice, lawsuits have been increasing against companies whose workers have developed signs and symptoms of Covid-19. Examining these lawsuits gives a sense of the types of risk companies have in the Covid-19 era and how they can prevent some of this litigation.

The initial wave of lawsuits unsurprisingly revealed companies that kept stores open such as Walmart and Safeway were the target of lawsuits from families of deceased workers who contracted Covid-19.  However, the main target of the bulk of lawsuits occurred in manufacturing companies as these industries had extremely large numbers of Covid-19 cases.

One company that received an early lawsuit was Smithfield Foods whose parent company is WH Group in China.  Smithfield's South Dakota plant had reportedly over 850 workers test positive for the virus with at least 2 deaths. From a lawsuit filed by workers there, the first worker at the plant tested positive for the virus on March 24, but the plant was not closed until April 14.  This problem was not localized to its South Dakota plant as at least 5 total Smithfield plants had closed temporarily during the pandemic.  In total over 2000 workers from Smithfield and JBS have tested positive since the pandemic began.

The entire meatpacking industry has been decimated by Covid-19.   More sadly, at least 133 reported worker deaths at least 43 plants in 24 states have been attributed to Covid-19. In reaction to the multiple outbreaks, Tyson Foods has started a massive nationwide testing program nationwide at its plants.  In just one region, the company tested almost four thousand Arkansas workers and had 481 positive cases or a 13% positivity rate.  In total, the company has had 10,104 workers test positive for Covid-19 since March.

Despite these thousands of infected workers, worker protections have been ignored by federal regulators.  The main organization for workplace safety, OSHA has been largely silent during much of this pandemic.  OSHA’s statements during this disastrous period have consistently mentioned that their standards do not specifically cover infectious-disease protection or airborne illness.  This organization has avoided giving fines, inspections, or excess scrutiny on companies with infections.  OSHA has also deferred providing specific guidance for new, stricter regulations in the Covid-19 era.  

Companies with outbreaks have definitely benefited from being able to self-police in this business-friendly climate and avoided mammoth fines, plant closures, and other censure that would give ammunition to plaintiff lawyers.  Besides the light touch from OSHA, companies have had lawsuit protections in multiple states due to state laws.  

However, these circumstances could change drastically and leave the climate ripe for more lawsuits.   Businesses will face much more pressure from litigation and regulations if there is a new administration in the White House after November’s election (as polls are universally predicting).  Federal lawsuit protections will also fail to be in this instance as industrial companies or others with Covid-19 cases could expect to see potentially enormous fines, tighter regulations and inspection, and minimal protections from lawsuits.

As all companies start repopulating their workplaces, they will be at risk for Covid-19 infections just by statistical probability of some random occurrence.  To try and minimize these untoward events, many companies have already created return-to-work Covid-19 teams which will focus on the major relevant issues in thi