Originally posted by Dustin Saiidi, Esq. on Law At Your Side
If a worker gets coronavirus due to work and passes away, they will likely have a valid Workers’ Compensation claim.
But does their family have a valid 3rd party wrongful death claim against the employer as well?
An individual worker’s claim against an employer would fall under exclusive remedy within the workers’ comp system. But a third-party claim may fall outside of the normal process, especially if the claimant alleges the company’s behavior directly contributed to a worker or family member contracting the virus.
Evidence to look for
Some things to look for in determining if the Employer was negligent in attempting to prevent COVID-19 from spreading at work:
- Did they have poster?
- Did they have training?
- Did they do proper cleaning and disinfection?
- Did they inform others in the workforce when there was a positive case?
- Did they have formal updated policies to deal with COVID?
- Did they require masks?
- Did they have social distancing measures?
How do we know the worker got it at work?
For injuries between March 19, 2020, and July 5, 2020, if any employee worked at a physical location and was diagnosed with COVID-19 within 2 weeks of having physically worked there, there will be a presumption that the injury was caused at work, per the California Governor’s executive order.
A new law was just passed discussing workers who get COVID after July 7, 2020. For now, the summary on the new law is that after July 7, 2020, a COVID workplace presumption only applies to Firefighters, peace officers and health care workers who get diagnosed with 14 days of working at a location (not their residence) All other workers get a presumption if there is a ‘workplace outbreak’… meaning 4% or more of the workplace has tested positive, in addition to the employee.
For more information, please contact Workers’ Compensation attorney Dustin Saiidi, Law At Your Side