There are periodic criticisms of workers' compensation. Some lament its intricacies and complexities. Others complain about the cost(s). It is perhaps as universally misunderstood as it is maligned. But, remember that immunity from tort exposure is fundamental to the concept of this statutory abrogation of common law rights. That immunity for employers and coworkers is a critical feature common to each jurisdiction's statutory program. And, it is among the features of workers' compensation most readily forgotten or overlooked.
Immunity. That is an important attribute. The term can have significant import in both medical and legal contexts. In the present pandemic, there is some tendency perhaps to focus on the medical perspective. There is perhaps encouraging news there.
To be immune is something upon which we have perhaps all focused in recent months. There is some evidence surfacing that suggests our bodies, to varying degrees, have the ability to fight of the dreaded COVID-19/SARS-CoV-2, an "immunity." The latest on this came from Britain recently, reported by the British Broadcasting Corporation (BBC). The report suggests, without yet being peer-reviewed or published, that it is possible our t-cells can be critical regarding our susceptibility to the virus and our response, independent of antibodies, inoculations, and treatments.
However, the focus today is on the law. the workers' compensation immunity. Even Statler and Waldorf will see connections between the virus and the workplace. Certainly, there are apparent implications in the potential for suffering the virus, spreading the virus, avoiding the virus, and there could be associated expenses including medical care, hospitalization, lost wages, and more.
A recent article reminded of the importance of legal immunity. In Florida, this comes from section 440.11(1):
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:
Obviously, the caveat "except as follows" bears consideration. This is not an absolute immunity, but one which is relatively clear in its primary expression. The liability for workers' compensation benefits is "exclusive and in place of all other liability." This is the "shield" of workers' compensation, the primary benefit that employers enjoy from the "Grand Bargain." While employers may be compelled to compensate a variety of injuries and illnesses for which they are not at fault (comp is a no-fault system), they are likewise immune from tort liability for injuries in which they are in fact negligent, or otherwise at fault in a tort sense.
A reminder of this recently made the news in Florida. The
Insider reports that a nurse has alleged a physician intentionally passed the COVID-19/SARS-CoV-2 to her in the workplace. Her allegations include that the employer failed to provide personal protective equipment (PPE), did not allow employees to consistently wear PPE, and disregarded workplace safety. Specifically, she alleges that when she complained about the working conditions, her boss "coughed on her while he was infected with COVID-19" and then informed her that she was thereby infected and to leave him alone (regarding fears of contracting the disease).
After this interaction, the employee alleges she contracted COVID-19. She claims this was a result of the act of her boss, a doctor, coughing on her intentionally. Thereafter, COVID-19 allegedly spread (more likely the virus - SARS-CoV-2 spread) to other members of her family. She has now "filed a lawsuit against her boss, and claimed that the office she worked for did not provide personal protective equipment during the pandemic." She seeks to recover in tort for the action or inaction of her employer.
The employer denies her allegations. In a statement, it asserts the "allegations set forth in the complaint are unfounded and will be aggressively defended." As a side note, there has been mention in the medical literature of the "long COVID," that is long-term effects on the body left by the disease after recovery from the virus. See,
COVID-19 in Comp - October Update. The employee's allegations in this instance include suffering "medical consequences that will last a lifetime." Thus, there is a least the potential that such a lawsuit might be of significant import. Different people seem to have a variety of experiences with this virus.
Though there has been much discussion of the compensability of viruses and other occupational diseases, there has been little attention to the topic of tort liability. This is likely because proving a tort claim for SARS-CoV-2 might be difficult at best. Though one might know or have interaction with an infected person, and later fall ill her/himself, the court will likely require more than this circumstance. The plaintiff will have to prove that the actual exposure occurred as a result of the defendant's negligence, or even intent. Proving such causation may involve medical experts, testing, and circumstance. In the end, it may prove an expensive endeavor.
There is also the potential that an employer will defend such a tort claim based on section 440.11. Back in 1995, Florida's First District Court rendered Emergency One, Inc. v. Keffer, 652 So. 2d 1233, 1234 (Fla. 1st DCA 1995). There, an employee in a production plant "was expected to use a metal-banded detail brush and flammable lacquer thinner to clean" vehicles. This included around "the battery compartment," which was labeled with decals saying “explosive” and “no smoking.”
Her work area was close to stored "lacquer thinner marked 'flammable.'” Prior instances of electrical arcs from the work made the employer "aware of" the potential for electrical arcs from brush to battery during this task. The employee asked the employer to provide "plastic brushes" to mitigate this risk, but the employer "refused . . . because of the additional expense." Thereafter an arc ignited the thinner and the employee was severely burned.
Though the trial court in Keffer had denied the employer's motion to dismiss the tort claim based upon section 440.11, the District Court reversed. It concluded that the employer was entitled to the statutory immunity from tort. This, is despite the "evidence of a dangerous work environment," and the "allegation that safety precautions were withheld." Despite that evidence, the Court noted, "there was no competent evidence to support a view of intentional misrepresentation of the dangers involved," and "there was no evidence of a concerted intentional effort to do so."
There are a variety of arguments that might be raised. Is the withholding of a plastic brush different than a PPE? Perhaps in that PPE is a requirement in some settings? Would a
legal requirement impact the analysis? Would the timing of the allegations be of interest, as in when were the masks discouraged or not provided (there was a time when America's best scientists
recommended against masks; there was a time the
obtaining masks was challenging). If found to be true, would the allegation of intentionally coughing on someone change the analysis?
The point is that some events may not be covered by workers' compensation. Some actions or inactions may be amenable to a civil case (tort), but it appears the exceptions to workers' compensation immunity may well be narrow. Will there be a few examples of such allegations and civil lawsuits, or will there be many? The history of COVID-19/SARS-CoV-2 is not written yet. There is much to learn in days/years to come. The long-term medical implications, the path to better detection/prevention, and these legal questions are among the many subjects likely to face analysis and discussion.
