COVID-19: Legal Issues When Workers’ Compensation Doesn’t Apply

With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated. In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file a lawsuit (getting around the “exclusivity bar”), as illustrated by a recently filed wrongful death case in Illinois, Evans v. Walmart. In this case, plaintiffs argue that two Walmart employees, Wando Evans and Phillip Thomas, passed away due to complications from COVID-19 contracted while working for the big box retailer.