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Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.

Walmart. In early April, a Walmart retail employee’s family filed a lawsuit against Walmart in Cook County, Illinois (Circuit Court of Cook County, Illinois Case No. 2020L003938) following the employee’s death after contracting COVID-19. The lawsuit filed by the employee’s family accuses Walmart of negligence and wrongful death in violation of Illinois law. The Complaint alleges that Walmart did not follow guidelines issued by the Center for Disease Control and Prevention and U.S. Department of Labor for maintaining safe workplaces. It is alleged, among other things, that Walmart failed to enforce social distancing, properly cleanse and sanitize, provide PPE including masks, latex gloves, or antibacterial wipes to employees, and further failed to send COVID-19 exposed employees home until cleared by a medical professional.

Tyson. In May, a Tyson employee’s family filed a lawsuit against Tyson in the Northern District of Texas (U.S. District Court for the Northern District of Texas Case No. 2:20-cv-00125-Z) after the employee suffered a work-related injury, contracted COVID-19, and died. The lawsuit filed by the family accuses Tyson of failing to provide employees with appropriate personal equipment, and further alleging that “a grossly disproportionate number of Tyson employees have contracted COVID-19, and have died, compared to the population as a whole.” The lawsuit was later voluntarily dismissed by the employee’s family on June 5, 2020.

As employees continue to return to work, employers should focus on preventative measures to keep employees safe and healthy to avoid having to defend against any personal injury or wrongful death lawsuits. Some of the best practices related to workplace safety concerning COVID-19 include:

  1. Following the CDC’s Interim Guidance for Businesses, including best practices for cleaning and disinfecting areas in the workplace, social distancing, and quarantining employees who have confirmed their exposure to COVID-19.
  2. If and when an employee has a confirmed case of COVID-19, send the employee home preferably until they are released by a medical professional, or at least until they are able to meet the requirements for ending home isolation.
  3. If and when an employee has a confirmed case of COVID-19, work to quickly determine all other employees and/or third parties who might have been exposed to the COVID-19 positive employee. The CDC Contact Tracing Guidelines provide that in order to best determine other employees who were at highest risk to COVID-19 exposure, employers should ask the following question: Who worked within 6 feet of the sick employee, for 15 minutes or more, within the 48 hours prior to the sick employee showing symptoms? This has been referred to as the “6-15-48” Rule. Once identified, the CDC recommends that 6-15-48 employees of non-critical business self-quarantine for 14 days after their last potential exposure, maintain social distance, and self-monitor symptoms.
  4. Stay apprised on the changes and updates issued by the CDC and share with your employees. Educating and engaging employees is key. Continue to remind employees of COVID-19 symptoms and urge them to seek medical attention if COVID-19 symptoms appear. For employees who are isolated, the employer should check in with the employee at least once a week.
  5. If there is a confirmed case of COVID-19 in the workplace, inform employees immediately. Although there is no case law requiring employers to inform employees of confirmed cases, erring on the side of transparency will help best conform with OSHA’s general duty clause, which requires employers to maintain a safe work environment.

For questions, or more information, please contact your primary BMD attorney.

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”