COVID-19 Catch-22

How a statute can leave an employee with no remedy in workers’ compensation or in tort

By Alexis C. Griffis; Forrest Cressy and James, LLC; New Orleans, Louisiana

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In light of the growing global coronavirus pandemic, the Louisiana Legislature passed HB 826 during its 2020 Regular Session. This bill enacted La. R.S. 9:2800.25, which limits liability for exposure and contraction of COVID-19. Of particular significance, La. R.S. 9:2800.25 (C) and (D) intend to shield employers from liability by broadening the coverage of the Louisiana Workers’ Compensation Act. Specifically, Section D provides: Notwithstanding the rights of employees as provided by R.S. 23:1032(B), employees who contract COVID-19 and are not covered by the Louisiana Workers’ Compensation Law shall have no remedy in tort for such exposure against their employer, joint employer, borrowed employer, statutory employer, any other person or entity listed in R.S. 23:1032(A)(1)(b), and any other person or entity potentially liable pursuant to the Louisiana Workers’ Compensation Law unless the exposure was caused by an intentional act. Simply, “not covered” by the act refers to any employee plaintiff who failed to prove by an overwhelming preponderance of the evidence that they contracted COVID-19 in the course of and arising out of their employment.1 Therefore, any employee who cannot meet this incredibly high burden of proof will not be covered by the act and is left only with a tort remedy against his employer for intentional exposure to COVID-19. The statute leaves no avenue for remedial measures for an employee against an employer where the employee sustained injuries due to COVID-19, is “not covered” under the act, and whose exposure was not due to an intentional act. Consequently, this statute not only shields employers by broadening the act’s coverage, but the statute also essentially eliminates employer liability for injuries resulting from COVID-19.

What to do?

The Centers for Disease Control and Prevention and state and local governments continue to release data that suggests members of low-income families who contract COVID-19 have an increased risk of serious illness compared to families with higher incomes.2 This statute raises great concern for plaintiff attorneys whose clients may be particularly prone to significant illness or even death due to exposure to COVID-19. These individuals often must choose between not working to support their families and relying upon the assumption that their employer is properly ensuring their safety to prevent exposure. Pursuant to La. R.S. 9:2800.25 (A), the Louisiana Legislature provides a remedy for those injured due to COVID-19 exposure “in the course of or through the performance or provision of the person’s, government’s, or political subdivision’s business operations,” where the “person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations.” Therefore, Section (D) raises an issue similar to the one the Louisiana Supreme Court addressed in O’Regan v. Preferred Enterprises, Inc., 758 So.2d 124 (La. 2000). If the client is an employee and is not covered under the act and an intentional act did not cause the exposure, is there no remedy available for the client’s sustained injuries purely because the cause of action is against their employer? In 2000, the Louisiana Supreme Court addressed the issue of whether La. R.S. 23:1031.1 required that the act be the exclusive coverage for all occupational diseases and foreclosing all types of civil actions between employers and employees. In O’Regan, the plaintiff brought a negligence intentional tort and strict liability action against the employer after the plaintiff’s claim for workers’ compensation benefits were denied. The defendant argued that La. R.S. 23:1031.1 excluded coverage for employees who contract an occupational disease within 12 months of employment and, thus, prevent plaintiff from bringing a subsequent tort action against her employer in tort. The Louisiana Supreme Court concluded:

All states are unanimous in that the compensation remedy is exclusive of all other remedies by the employee if the injury falls within the coverage formula of the workers’ compensation act. If the injury does not, however, then states are also unanimous that the compensation act does not disturb any existing remedy, i.e., one’s right to sue for damages in tort, because no quid pro quo has taken place where they have actually provided no compensation liability.3 The court disagreed with the defendant’s assertion, finding that the statute could not bar an employee from compensation under the act as well as from bringing action against their employer in tort as this would leave the employee without any right to seek a remedy. Therefore, the Legislature cannot completely deprive citizens of the right to seek a remedy either under the act or under general law.

As currently written, Section (D) clearly excludes a remedy for injured employees “not covered” by the act where an employer failed to substantially comply with COVID-19 procedures as provided for in Section (A). This effectively excludes all liability for employers who fail to ensure the safety of their employees, leaving employees with neither a cause of action in tort nor under the act. As a result, it is possible that employees injured and excluded from all recovery pursuant to Section (D) could prevail in a claim arguing the constitutionality of La. R.S. 9:2800.25 (D). Leaving our clients who are already disproportionally impacted by COVID-19 without a remedy cannot stand. It is our responsibility to be in unanimity, disputing any statute that leaves one without a remedy for injuries suffered because of another’s failure or blatant disregard for human safety.

Endnotes

1. Plaintiff’s claim was held to not be covered under the act. See O’Regan v. Preferred Enterprises, Inc., 758 So.2d 124 (La. 2000) citing O’Regan v. Number One Cleaners, 96 769 (La. App. 5 Cir. 2/12/97), 690 So.2d 103 (holding that the claimant failed to prove by an overwhelming preponderance of the evidence that she contracted her injuries in the course of and arising out of her employment). 2. Health Equity Considerations & Racial & Ethnic Minority Groups, Centers for Disease Control and Prevention (July 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/ community/health-equity/race-ethnicity.html. 3. O’Regan v. Preferred Enterprises, Inc., 758 So.2d 124 (La. 2000) citing Larson’s Workers’ Compensation Law, §§ 100.01[1] & 100.01[4], at 100-2 & 100-8 (1999). 4. Id.