If your spouse, parent, child, or other close family member died of COVID-19 after working on the medical frontlines of the pandemic without adequate personal protective equipment (PPE), you may be thinking about suing the employer for wrongful death. Most of the time, workers’ compensation laws would prohibit that kind of lawsuit, but limited exceptions might apply in some states and some circumstances. Read on for details.
The workers’ compensation system is meant to provide benefits for work-related injuries and occupational diseases, including death benefits paid to surviving dependents of an employee who died from those causes (more on that below). In order to receive those benefits, you don’t have to prove in court that the employer was at fault. But there's a trade-off: Employees or their dependents usually aren't allowed to sue the employer for all of their losses, including loss of consortium. That "exclusive remedy" rule holds true even if a workers’ comp claim for COVID-19 is denied.
State laws make limited exceptions to the workers’ comp exclusive-remedy rule. Several states allow lawsuits when an employer’s intentional wrongdoing caused the injury or death. In the context of widespread PPE shortages, it could be next to impossible to prove that a hospital’s inability to secure enough medical N-95 masks or other protective gear was intentional wrongdoing.
But what if your loved one died because a healthcare employer—such as a nursing home or the medical clinic in a private prison—made cost-cutting decisions not to take basic infection-control measures or provide employees with PPE? Even though these actions might be deliberate, that wouldn’t necessarily mean you could sue for wrongful death.
In several states, the exception applies only in very limited circumstances, such as when the employer actually intended to harm the employee or knew that its actions were virtually certain to cause injury or death. Elsewhere, the intentional-wrong exception might cover a wider range of misconduct. For example, Texas allows survivors to sue an employer whose gross negligence caused the employee’s death.
This means that your ability to sue for wrongful death if a loved one has died of COVID-19 because of the employer's actions (or inaction) will depend on the laws in your state, as well as how judges interpret those laws in the context of the pandemic. In one Florida case, the survivors of a supermarket employee who died of COVID-19 after workplace exposure claimed that the employer not only intentionally failed to take safety precautions but prohibited its workers from wearing their own masks and gloves. The employer, Publix Super Markets, claimed that the lawsuit was an improper attempt to get around the workers' comp exclusive-remedy rule, but a Florida judge refused to dismiss the suit in February 2021.
Workers’ comp death benefits are meant to help compensate you for the loss of financial support you previously received from a deceased employee. To receive these benefits after a healthcare worker died of COVID-19, you need to meet two basic eligibility requirements:
If you qualify for death benefits, the amount of money you’ll receive will be based on the deceased employee’s earnings—typically two-thirds of the average weekly wage, up to a maximum amount. (Learn more about workers’ comp death benefits, including which survivors might be eligible and how long the payments last.)
If a member of your family died from COVID-19 as a result of working in a hospital, nursing home, or any other healthcare setting, you would be wise to talk to a lawyer who’s experienced in workers’ compensation and/or employment law. As with everything related to this pandemic, your legal options could change as courts, legislators, and workers’ comp agencies respond to the fallout from the disease. (For instance, some states have enacted laws shielding healthcare facilities from liability for any actions related to COVID care.) An attorney who has kept abreast of the latest legal developments should be able to explain how best you can seek compensation for the loss of your loved one.