What does a COVID-19 unsafe workplace lawsuit look like?  We did not have to wait long to find out.  Just a few months into the pandemic, one of the first such lawsuits has been brought in Dallas County, Texas.  On April 30, 2020, the spouse of a Dallas meat plant worker who died from coronavirus sued her late-husband’s employer for claims of negligence and wrongful death in Parra and Dominguez v. Quality Sausage Company, LLC. 

The Dominguez case raises some extremely difficult practical and legal questions such as how does an employer execute its responsibilities to create a safe workplace and how can an employee prove that COVID-19 was contracted at the workplace.  

Case Background

Hugo Dominguez worked at Quality Sausage Company in Dallas, Texas.  He died on April 25, 2020 from COVID-19. In the lawsuit, Dominguez’s surviving parents and common-law spouse allege that the employer failed to provide Dominguez with appropriate safety equipment, PPE, or training following the COVID-19 outbreak. 

Although the Texas Workers Compensation Act states that receipt of worker’s compensation benefits are an injured employee’s exclusive remedy, there are exceptions.  One exception is that a surviving spouse or estate of a deceased employee may seek recovery of exemplary (punitive) damages caused by the intentional act or gross negligence of the employer. Another exception is that employers may opt not to purchase worker’s compensation insurance, achieving so-called non-subscriber status.  Plaintiffs in the Dominguez lawsuit allege ordinary and gross negligence and sue under the wrongful death and survival statutes, indicating that the first exception may apply.

The following basic facts have been alleged to underlie Plaintiffs’ claims:

• Dominguez was a forklift driver at Quality Sausage;
• It became clear in early April that people at the facility were sick;
• Dominguez was told to report to work and to keep working or he would be laid off; and
• After Dominguez and another employee died, Quality Sausage shut down the facility to re-evaluate its response. 

 

The allegedly unsafe workplace 

Plaintiffs allege that Quality Sausage failed to provide a safe workplace for Dominguez in the following ways:

• Failed to supervise the environment, placing protocols, providing and requiring masks, gloves, and enforcing six feet social distancing as per CDC and Dallas County Judge Clay Jenkin’s orders;
• Forced Dominguez to work even when he was sick;
• Failed to provide safety tools and equipment;
• Failed to ensure company premises were maintained in a way to prevent illness and injuries to its employees;
• Failed to supervise the employee’s activities as per CDC and Dallas County protocols;
• Failed to warn its employees as to the hazards of their employment post COVID-19 pandemic;
• Failed to install, adopt or employ adequate safety measures in its workplace to prevent incidents such as the one that injured Dominguez.

 

What is “reasonable care” in the context of COVID-19?

Negligence is defined as the failure to reasonable care. An employer acts negligently when it fails to act as a reasonable, prudent employer would act under the same or similar circumstances.  Gross negligence is defined by Texas statute, has an objective and subjective element, and requires proof that an employer acted with conscious indifference to the safety or welfare of its employees. 

Determining precisely what “reasonable care” means or whether an employer acts with “conscious indifference” are difficult questions under the unique circumstances posed by the COVID-19 pandemic.  Following the recommendations from public health authorities regarding workplace safety and to taking reasonable steps to assess and mitigate COVID-19 related risks to their employees may help establish that an employer acted reasonably in creating and maintaining a safe workplace during the pandemic.

The inconsistent directives and recommendations from federal, State, and local authorities make it difficult for employers to comprehensively define “reasonable care”.  For a brief period of time, different counties and cities throughout the State defined “essential” or “exempt” business differently, resulting in a patchwork of open and closed businesses across the State.  Even after Governor Abbott clarified which businesses were “essential” and allowed to remain open during the stay-at-home period, different counties and cities imposed different requirements for open workplaces.  For “essential” employers with multiple workplaces in different jurisdictions in the State, acting with reasonable care either required and still may require imposing different safety requirements or recommendations for each workplace or implementing the most Draconian measures, typically imposed by Travis County and the City of Austin, on a state-wide basis.  

Obtaining a comprehensive definition of “reasonable care” is further complicated by the ever-evolving base of knowledge about the novel coronavirus.  As the pandemic spreads, we gain new understandings of signs and symptoms of COVID-19 and how the disease manifests.  What was originally believed to be a purely respiratory illness that affected older persons has morphed in a disease that causes rare illnesses in children, massive stokes in middle aged persons, inflammation or extremities in all age groups, and loss of smell and taste for many individuals.  The high incidence of asymptomatic infected persons, the existence of so-called super-spreaders, and the inaccuracy of current antibody tests do not help, either. 

Even the most well-informed and conscientious employer may find implementing “reasonable care” difficult.  There are worldwide shortages of certain PPE and cleansers.  Monitoring employees’ use of PPE, their health condition while at the jobsite, and enforcing social distancing recommendations have proven challenging.

In the context of the Dominguez suit, the employer will need to look at the state of knowledge about the virus before and up to the time the employee allegedly contracted COVID-19.  The employer will also need to determine whether its processes and systems complied, to the extent applicable and possible, with federal, State and local guidelines and recommendations at that time.  Maintaining thorough documentation of those processes and systems and how they may have been revised and implemented will assist in proving that an employer acted with “reasonable care”.

Causation

The COVID-19 virus is highly contagious and the nature of COVID-19 transmission, particularly asymptomatic transmission by those individuals who may not know that they are carrying the virus, will likely complicate a plaintiff’s capacity to prove that they have contracted COVID-19 while at work, and that it occurred as a result of their employer’s failure to maintain reasonable care. 

The hurdle of establishing exactly how and when an individual was infected will be exacerbated by the challenge in proving which particular failure by the employer caused the infection and which anticipatory measures could have potentially prevented it.  There is little doubt that as the science about the novel coronavirus evolves, so will the sophistication of the causation theories espoused by ill employees. As a result, as an employer, documenting your efforts to take precautions and follow CDC, state and local guidelines during this crisis are extremely important, in particular, documenting that date(s) when you implemented certain protocol and procedures in your workplace to protect your employees. This documentation can help establish your anticipated defenses of your continued monitoring of federal, state and local recommendations and requirements and your immediate implementation of protocols to follow same as the employer.

It is always a best practice to consult with a human resources manager and/or legal counsel regarding any employment-related issues. The attorneys in our Austin and Dallas offices are available to answer any questions you may have. 

 

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