Workers’ Compensation Immunity Is Challenged In Court
A judge recently declined to dismiss a personal injury lawsuit brought against Publix by a worker who contracted COVID-19. Although the case is in the early stages, it will once again test the limits of workers’ compensation immunity.
What is Workers’ Compensation Immunity?
Workers’ compensation immunity says that an injured worker cannot sue an employer in personal injury, so long as workers’ compensation coverage was afforded and available to the worker. This is also known as workers’ compensation exclusivity.
The idea is a trade-off: By getting workers’ compensation benefits regardless of fault (even if it’s the workers’ own fault), the worker gets quick, easy and immediate access to medical care and in some cases, lost wages (at least, in theory). But in return for that ease and speed, the worker gives up the right to sue the employer in personal injury.
Exceptions to Immunity
There are exceptions to that exclusivity, such as where an employer acts intentionally, or with complete and total disregard for the health and safety of workers. This is a very high standard. This is why if an employee tries to sue an employer in personal injury for an injury that occurred while at work, the lawsuit is likely to be dismissed (the employee can still get the workers’ compensation benefits).
Suit Against Publix for Contraction of COVID
A recent lawsuit seeks to overcome the immunity in a lawsuit against Publix.
The employee says that in the early days of the pandemic, the worker was infected by another worker who came to work with COVID. The lawsuit alleges that Publix prevented workers from wearing masks at that time, and that the sick worker, who spread the disease to the employee that is suing, was not sent home, even though he or she had obvious symptoms of COVID.
As a result of the exposure to the sick employee, the Plaintiff eventually died from COVID.
As such, the lawsuit alleges that Publix’ behavior was more than just negligent, but rather that it rose to the intentional or near-intentional level of liability that would warrant overcoming the workers’ compensation immunity.
Publix countered the suit by saying that at the time, it was not known or required for anybody to wear masks. It also counters that if it is liable for anything, it would only be liable for the simple negligence that does not overcome the workers’ compensation immunity. As such, Publix moved to dismiss the injury case, arguing that workers’ compensation was the sole avenue for the employee to recover.
The Court denied Publix’ motion, which is a win for the employee, and weakens the idea of workers’ compensation immunity. But the case is still very early, and it is likely that an appeal will follow and it will be up to the appellate courts to determine whether immunity applies in this case.
The Tampa personal injury attorneys at Barbas, Nuñez, Sanders, Butler & Hovsepian can answer your questions if you are in an accident. Schedule a consultation today.