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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.

HHS Announces an Additional $20 Billion In Provider Relief Grants

The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.