Source: Amazon
Should Amazon, Walmart, others be held liable for workers sickened by COVID-19?
Early last month, the National Retail Federation (NRF) sent a memo to Congress with a list of the priorities that the trade group believed should be in any new stimulus legislation. At the top of that list was liability reform.
The NRF, along with other business groups, is urging lawmakers to limit the liability of employers in cases brought by workers sickened with COVID-19 or individuals who may have become infected with the virus after coming in contact with workers.
Some have suggested that a more equitable response to employees sickened by the novel coronavirus may be alternative “no-fault” civil litigation. The thinking here is that workers would be compensated for having become ill while working in a store or a warehouse, but that companies would not be bankrupted in addressing all the potential claims against them.
Employee suits being brought against retailers is not a hypothetical.
Amazon.com is being sued after a worker at its warehouse in Staten Island, NY contracted the novel coronavirus and later saw family members become ill, including a cousin who died. Reuters reports that the lawsuit claims Amazon puts its warehouse workers in a “place of danger” by forcing them to meet job requirements that prevent them “from socially distancing, washing their hands, and sanitizing their workspaces.”
The e-tailing giant has consistently defended the actions it has taken to protect its warehouse workers and those in its Whole Foods stores. On the company’s first-quarter earnings announcement, CEO Jeff Bezos announced that Amazon would spend $4 billion in the second quarter to keep employees safe.
The very first COVID-19-related lawsuit brought against a retailer in Illinois, one of the states hit hardest by the coronavirus outbreak, was in April against Walmart. The estate of Wando Evans, a former employee at a Walmart store in Evergreen Park, filed a wrongful death lawsuit against the retailer after his death on March 25 from complications caused by the virus, reports Law360.
A second worker at the same store died days after Mr. Evans, and his estate claims that the store took no action to prevent symptomatic employees from working until after he died. Mr. Evans’ estate contends that store management did not train workers in COVID-19 mitigation procedures, provided no personal protective equipment for employees nor took actions to properly sanitize the store.
At the time, Walmart spokesperson Randy Hargrove said the company was “heartbroken” over the loss of its workers to the virus. He also said the retailer had already taken steps to reinforce its cleaning and sanitization practices. Mr. Hargrove told Law360 that Walmart took the suit against it seriously and would respond, as appropriate, in court.
- NRF Priorities For The Next Economic Stimulus Package – National Retail Federation
- Amazon is sued over warehouses after New York worker brings coronavirus home, cousin dies – Reuters
- There go the profits. Amazon to spend $4B on coronavirus response. – RetailWire
- Ex-Walmart Worker’s Death Spurs ‘First’ Ill. COVID Death Suit – Law360
- Fear, heroism and wrongful death lawsuits in the age of coronavirus – RetailWire
- Walmart sells inclusivity at its annual shareholder meeting – RetailWire
Discussion Questions
DISCUSSION QUESTIONS: Do you support the passage of legislation that would limit the liability of employers in cases where workers get sick from COVID-19 on the job? Do you think such legislation could be drafted so that it would also be equitable for both stores and affected workers and their families?
Poll
BrainTrust
Jeff Weidauer
President, SSR Retail LLC
Ben Ball
Senior Vice President, Dechert-Hampe (retired)
This is going to be complicated and difficult, but given what we’ve learned during COVID-19, it may be necessary. The fact is, it will be very difficult to categorically prove that an employee got sick at work. That’s not to say that legislative protections shouldn’t be put in place. And based on the actions of some companies, like Amazon, it’s clear that self-policing alone is not the answer. For example, Amazon has announced that it’s ending hazard pay when there is still work hazard. So far, eight Amazon workers have died of COVID-19 related illness and there has been at least one case in 100 Amazon distribution facilities. Legislation to limit liability may be required, but it must be equitable for workers and their families.
I agree, though with large employers (such as Amazon) they may have a sufficiently large data set that we can establish causation … at least at a group level (i.e. if the norm for an industry is 2 incidents and an employer has 8, then the 6 “extra” were “caused” by that employer’s working conditions). Of course life is seldom as simple as my example, and will become even less so as competing interests — and dollars — become involved.
Fair point Craig. Amazon and other large employers “may” have actual data to defend their position on causation, but what they most certainly have are financial resources, lawyers and lobbyists to fight lawsuits that threaten their interests, and influence legislation in their favor.
The threat of class action lawsuits is real. While there is no diminishing the risks that frontline employees take in working through COVID-19, there is an industry of trial lawyers out there waiting.
Congress should legislate to create an equitable compensation framework to provided beyond worker’s compensation.
Similar to many other workplace hazards, there are certain situations where liability should remain with the retailer and some where it should be limited or removed. The determining factors should be based on compliance and negligence and a test of reasonableness. Was the retailer in compliance with federal, state and city guidelines around workplace conditions during COVID-19 and taking reasonable actions to prevent the spread of the virus among its staff? Or did the retailer ignore recommended guidelines and intentionally place their associates into a harmful environment? There are parallels to be drawn and precedents set around contracting flu infections from the workplace.
The key question: Did the employee contract COVID-19 while on the job, due to the employer’s faulty safety practices? Or did the employee actually bring the virus from elsewhere and spread it among other associates? Unless a court is able to answer that question one way or the other, it’s going to be hard to hold big employers like Amazon and Walmart liable. Those companies would do well to keep meticulous records of everything from temperature checks to sanitizing schedules — not only for their own liability, but also to reassure their employees that they are adhering to best practices.
Here we go. If an office worker contracts COVID-19, it would be hard to determine where the illness came from; but if a bunch of people who are working side-by-side fall ill at a meatpacking plant, that’s a whole other story. These business groups are trying to shield companies that take only limited steps to protect their workers. There’s a related story in RetailWire today about grocers who don’t require masks in the store, opening the possibility that customers could infect their workers.
Do we really want to send a message that associate safety isn’t important?
Good question. Thing is, the NRF represents retailers, not retail workers.
You’re right — and they made that clear in the last election.
Legislation to limit liability sounds good in theory, but it’s not really practical to execute fairly. The broad disparity of working environments and unknowns create a formidable legal landscape. We all look at Walmart or Amazon, but what about the local retailer that imposes unrealistic expectations on workers, causing real harm? Should they all be protected with the same umbrella?
This pandemic was an unknown before it came upon us. Very few knew anything when we began to feel the impact. While the safety of its employees and customers should be of primary importance to any business, looking for culpability in this particular instance does not serve anyone well. If someone can prove negligence, such as a retailer having received guidelines and not followed them later in the development, those employees may have a case.
Employers need to do everything to ensure that given safety rules are followed. If that is the case, then the employer should not be made liable if an employee gets infected.
I agree. The issue comes if the retailer did not follow all the known safety rules.
But let’s also ensure that the employer doesn’t get to write the rules (or eliminate oversight) through political influence – as we are already seeing in the meatpacking industry. There also has to be transparency around standards and compliance so that unions, media, and local communities can have confidence in the process.
Agreed Chris. The kicker is going to come when the legal industry starts mixing the terms “rules” (implying legislation or other legitimately issued orders) and “guidelines,” CDC or otherwise. The law doesn’t conflate those two terms, but lawyers and juries might.
This is a very complex area. Proving exactly where coronavirus was contracted from will be extremely difficult. On top of that you’d have to prove that the company has been grossly negligent. If reasonable precautions to protect workers have been taken, it doesn’t seem right that a company should be held fully liable. Nor is it reasonable if companies have afforded protections and workers have not followed them – for example taking off masks and not engaging in proper hygiene. There are so many considerations to take into account.
This is a lot more complicated than legislation limiting liability. How about science-driven protocols giving some guidance about who closes, who stays open and under what conditions? If employees are placed in working conditions known to be unsafe, then damn right the employer is liable. If protocols were followed and people still get sick, then yes, limit the liability. We can argue the political angles, but we are also learning how differently this could have been handled from the beginning, with less illness, fewer hospitalizations and fewer deaths.
I’m with Jeff here. I’m steeped in this topic due to the products we’ve been bringing to market, so my opinion is informed by a lot of time in the trenches digging into it. Gary Kibel of Davis & Gilbert helped me get my arms around this best, as he’s become a key voice on the topic from a legal perspective. He also warned our team about this legislation on the table.
Where I personally ended up is that no, there are too many unknowns to be able to hold them 100 percent accountable. However, and this is the BIG CAVEAT, this should hold true only if they have put reasonable processes and systems in place that meet reasonable safety expectations of the workers. As in, they have preventative measures and processes that at least try to stop any transmission. Perfection is not the goal — reasonable attempt is. To do this however, we must first clear up the murky guidelines out there. The CDC has them, but we see the industry supplementing them with their own tools and processes — and wow is it schizophrenic. We have those going above and beyond and those that do little more than tape on the floor.
No worker should have to go into a job to support themselves or their family in an environment where the employer is not held accountable to ensure—to the best that they can—that the environment is safe. As long as they have things in place that do this as best as possible, they should not be held accountable in court. If they do nothing, however, I do believe that they should be. The support tools are out there, and it’s in everyone’s best interest to use them.
Holding employers accountable for employee illness of any sort is based in the idea that something the job required or that was caused by the work environment actually caused the illness. Asbestos and mesothelioma is a classic example. But employers have not been held liable for workers who contract illnesses that are spread throughout the general population. To my knowledge, no employer was held liable for workers who contracted SARS or even the common flu and died. COVID-19 has received tremendous attention and that’s good. It drives action to minimize the harm and find a solution as quickly as possible. But the only basis for retailer liability would seem to be not observing legally established and enforceable measures. “Guidelines” — whether CDC, WHO or otherwise sourced generally don’t live up to that standard — until a lawyer gets you to a jury trial. It is too bad that we have to pass legislation telling lawyers that they have to be limited by legal liability statutes, but we probably do.
I am in agreement with Neil. There is no way that anyone could point their finger at a person or organization and claim them to be the host who infected them. If companies were to be held liable, the burden would center on proving the company was the source. That’s nearly impossible. If, however, a company ignored mandated safety regulations, there may be a reason for an actionable claim. But proving the infection came from a specific party? Fantasy.
My condolences to any associate who is working in today’s environment and has contracted COVID-19. We will require legislation reform as it pertains to worker safety due to this pandemic. To hold employers liable is going to be tough as the burden of proof is not straight forward. Trial lawyers for employees are going to have a field day filing lawsuits against employers and this is why legislation reform is required.
This is challenging and involves complicated issues. When did the employer institute protective measures? What protective measures? Were they enforced? What protective measures did the employee use when not working? I really don’t know the answer. I don’t know how legislation addresses the complexity.
How do you know where someone got sick? Sure if that someone is a cashier who has little exposure elsewhere, it’s reasonable to assume it was at work. But it’s still an assumption and as people get out more, they will have more opportunities for exposure.
I don’t really see a solution for this, beyond redefining standards and restricting liability to violations of those standards. That’ll be easy … yeah, right!