OSHA practitioners who have handled citations involving fatalities or severe injuries are most likely no strangers to considering how these citations including the alleged violation description might affect collateral litigation such as wrongful death actions or tort claims. Indeed, collateral litigation almost always presents significantly more liability for businesses than the OSHA penalty. Although state workers’ compensation laws may differ, it is usually difficult for an employee to evade the exclusive remedy of workers’ compensation in a more traditional injury on the job. Of course, there may be other facts such as a fatality on a multi-employer worksite that might complicate workers’ compensation coverage. In such cases, the business may decide it is more advantageous to take the position that the injured employee of another entity is also its statutory employee to trigger workers’ compensation coverage. These considerations will often drive OSHA settlements including timing and settlement agreement language. For example, businesses should insist on language that states the settlement cannot be used for any other purpose except OSHA enforcement. Of course, notwithstanding such language, a court may still permit the settlement as evidence in collateral litigation.
All of these issues must also be considered when dealing with a COVID related fatality or hospitalization. However, COVID based wrongful death, tort or gross negligence lawsuits may present certain unique issues that might not exist, or at least to the same degree, as a traditional injury case particularly when dealing with OSHA implications. For example, take the issue of whether to record a positive COVID test as work-related on the OSHA 300 log. In a prior blog accessible here, we reviewed OSHA guidance on when COVID should be recorded as work-related. Ultimately, if an employer determines that a positive test is more likely than not work-related it must be recorded according to OSHA. However, in most cases outside of health-care, the determination may not be so clear.
With a noticeable increase in COVID wrongful death, tort or gross negligence cases recently and the expectation that more of these cases will be filed, the potential implications on such collateral litigation stemming from a COVID related general duty citation, entries on an OSHA log, or even an employer’s formal response to an OSHA whistleblower complaint need to be carefully considered. It should be assumed that all of the aforementioned documents would be subject to discovery in litigation and potentially used as exhibits by plaintiffs. In addition, some states have passed laws that presume a positive COVID test is covered by workers’ compensation while other states have passed laws limiting when businesses can be sued over COVID in order to help shield them against frivolous lawsuits. All of these issues need to be collectively considered in order for businesses to make informed and strategic decisions on the best way to proceed in each forum.