Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

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.

Families First Coronavirus Act (“FFCRA”) Under Attack

In response to the COVID-19 global pandemic, the Families First Coronavirus Act (“FFCRA” or “the Act”) went into effect on April 1, 2020 followed closely behind by the Department of Labor’s (“DOL”) Final Rule on the Act which, collectively, describe the obligations of employers as well as the rights of employees under the FFCRA’s paid sick time and expanded family medical leave provisions.

Lockdowns, Landlords, & Litigation: Abercrombie & Fitch Flips The Script on Simon Property Group Inc.

Novel litigation between commercial property owners and tenants arises from COVID-19 lockdowns. Typically, owners sue for nonpayment of rent. But in Franklin County, Ohio, a large retail tenant turned the tables and sued the owner to recoup payments.

UPDATE: Ohio Businesses Remain Required to Post Exceptions to State-Wide Mask Mandate at All Entrances

On August 1, 2020, Lance D. Himes, Interim Director of the Ohio Department of Health, issued an amended order continuing the requirement that Ohio businesses post at all entrances any permitted exceptions they provide to customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings.

2020 Marcum National Construction Survey Marks a New, Post-Pandemic Construction Environment

The results of the 2020 Marcum National Construction Survey are in, and the construction industry’s outlook for the remainder of 2020 and beginning of 2021 remains cautiously optimistic despite the COVID-19 global pandemic. Ability to find skilled labor, healthcare expenses, and material costs remain the top concerns for the industry, while “lack of future work” joins the list.

We are Working in a Virtual, Video-Conferencing World – But What About Wiretapping?

Businesses and other organizations often have a need or desire to record telephone conversations related to their business interests and customer dealings; however, this practice is not always permissible as federal and state laws vary on this issue. Knowing and understanding your jurisdiction’s rules and regulations on this practice is essential to remaining in compliance with the law.