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Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Can You Sue Your Employer If You Got COVID-19 at Work?

Q:        Can an Employer Be Sued Directly for Exposing Workers to the COVID-19 Virus (the CoronaVirus)?

A:        Yes, sometimes.  But it’s tough.  It depends largely on which state you are in.  In Maryland, like many states, workers’ compensation is the exclusive remedy for harms at work.  There are limited circumstances where the exclusivity can be overcome.  See below for more details.

Exclusivity of the Workers’ Compensation Act

The Maryland Workers’ Compensation Act provides an “exclusivity of compensation,” in which an injured worker cannot sue his or her employer directly in negligence (assuming the employer has insurance coverage).  LE 9-509.  Besides the lack of workers’ compensation insurance, the employer can be sued if the “covered employee is injured or killed as the result of the deliberate intent of the employer to injure or kill the covered employee.”  If a “deliberate act occurs,” then the covered employee has to elect to (1) bring a claim for compensation under this title, or (2) bring an action for damages against the employer.  An election must be made.

When Does the Exclusivity of the Workers’ Compensation Act Not Apply

An Employer can be directly liable for common law intentional torts.  Common law intentional torts are: assault, battery, false imprisonment, intentional infliction of emotional distress, fraud, trespass to land or chattel, defamation, invasion of privacy, and conversion.  However, an employer’s tort liability to an employee is nowhere near as broad as an employer’s liability to third parties for intentional torts.  The liability to an employee only covers situations encompassing  the “deliberate intention … to produce such injury.” Federated Dept. Stores, Inc. v. Le, 324 Md. 71, 595 A.2d 1067 (1989).  Also, not all intentional tort will apply.  For example, not all intentional torts will be imputed to the employer through respondeat superior or vicarious liability.  Id., See also, Continental Casualty Co. v. Mirabile, 52 Md. App. 387, 449 A.2d 1176 (1982), Schatz v. York Steak House, 51 Md. App. 494, 444 A.2d 1045 (1982).  Claims for “gross, wanton, willful, or reckless negligence” are still not permitted over the exclusivity.  Johnson v. Mountaire Farms, 305 Md. 246, 503 A.2d 708 (1986).

The interplay of the standard can be seen in the difference between the Le case and the Johnson case.  In the Le case, Mr. Le was permitted to proceed against his employee over a Motion to Dismiss for damages resulting from the intentional torts of false arrest, intentional infliction of emotional distress, and defamation.  In Johnson, Rodney Johnson was electrocuted two month after OSHA cited the employer for a “serious violation” and the employer lied to OSHA claiming that the violation had been repaired.  His mother was not permitted to proceed directly against the employer under allegations of “gross, wanton, willful or reckless negligence” when the allegations were based upon the employer’s grossly negligent conduct in failing to provide a safe place to work in violation of government regulations.  That did “not constitute an intentional tort.”  Johnson, 305 Md. at 255, 503 A.2d at 712.

The Le case lifted what was essentially an outright ban based on Mirabile and Schatz.   The Mirabile and Schatz cases held that only situations where the employer himself or the employer’s “alter ego” commits the intentional tort, or the employer expressly authorizes the intentional tort was the direct action against the employer permitted.

Intentional Infliction of Emotional Distress

A plaintiff must allege facts showing that: (1) the conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there is a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress is severe.  Harris v. Jones, 281 Md. 560, 566 (1977) (recognizing the tort); Nammack v. Hampstead Pre-Owned (D. Md. 2020), (“In Maryland, [t]he tort of intentional infliction of emotional distress is rarely viable.”); Gantt v. Security, USA, 356 F.3d 547 (4th Cir. 2004) .  From Gantt, “the defendant’s conduct is intentional or reckless where he desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct; or where the defendant acts recklessly in deliberate disregard of a high degree of probability that the emotional distress will follow.”  In Foor v. Juvenile Services Admin., 78 Md. App. 151, 552 A.2d 947 (1989), the Court of Special Appeals of Maryland held that for the plaintiff to establish the first element, a plaintiff must offer evidence that “the defendant either desired to inflict severe emotional distress, knew that such distress was certain or substantially certain to result from his conduct, or acted recklessly in deliberate disregard of a high degree of probability that the emotional distress will follow.”

 

Non-Intentional Tort Actions Against an Employer – Negligent Hiring, Retention and Supervision.

Under Maryland law, a non-intentional tort action against an employer, like negligent hiring, retention and supervision claims, must be based on actions that constitute a common law intentional tort.  In the recent (March 2020) decision of the Maryland District Court for the District of Maryland, the plaintiff’s negligent retention and supervision claims were allowed to continue over Motion to Dismiss and Summary Judgment because the underlying basis alleged assault, battery, and intentional infliction of emotional distress as predicates for her negligent retention and supervision claims.  The plaintiff was permitted to continue because the negligent retention and supervision claim were based under “a theory that the employer was negligent in its actions, thus allowing the battery to occur.”  Nammack v. Hampstead Pre-Owned.

Both the Maryland Federal District Court and the Court of Appeals of Maryland have both rejected “the proposition that the General Assembly intended that the Workers’ Compensation Commission is the exclusive forum in which a negligent hiring/retention claim must be litigated whenever such a claim is asserted by an employee against his or her employer as a result of intentional and unlawful misconduct of a fellow employee. A contrary conclusion would be unreasonable in the extreme.” Nammack v. Hampstead Pre-OwnedRuffin Hotel Corp.. of Md. Inc. v.  Gasper, 418 Md. 594, 17 A.3d 676 (2011).  In Ruffin, the plaintiff brought negligent hiring and retention claims against the defendant based on her claims that an employee had committed abusive behavior including allegations of assault, battery, discrimination, sexual harassment and fear of retaliation. Id. at 600, 17 A.3d 676.  See also, Brower v. AT&T Mobility Servs., LLC (D. Md. 2018); Whittaker v. David’s Beautiful People, Inc., No. CV DKC 14-2483, 2016 WL 429963, at *8 (D. Md. Feb. 4, 2016).

Other Wrongful Death Lawsuits

Pennsylvania

Benjamin v. JBS, S.A., et. al., Philadelphia County, Pennsylvania.  The suit alleges (1) negligence, (2) fraudulent misrepresentation, (3) intentional misrepresentation, (4) wrongful death, and (5) “survival act.”

Illinois

Evans v. WalMart, Inc., et. al., Cook County, Illinois.  The suit brings four causes of action against Walmart: (1) Negligence – Wrongful Death, (2) Willful and Wanton Misconduct – Wrongful Death, (3) Wrongful Death – Survival Action, and (4) Wrongful Death – Illinois Family Expense Statute.  Only three counts against the other defendant, leaving out the “willful and wanton misconduct” count.

Conclusion

Both lawsuits allege facts that would support the four elements of an intentional infliction of emotion stress count.  The Pennsylvania suit does allege common law intentional torts, although the Illinois suit does not.  If brought in Maryland, we need to allege something greater that a governmental rule violation (see, Johnson, supra.)  We need the general facts of these cases, but to plead them in accordance with the Maryland standard.  Also, these types of “Waiver of Exclusivity” claims seem to find better reaction in Federal Court than in State Court.  Also – the Johnson case is from 1986, was pre-Le and pre-Gasper.  It is possible that with the loosening of the exclusivity standard, as long as we allege sufficient facts, we can get around Johnson as the Johnson employer admitted some pretty egregious facts that lead to a 16-year old being electrocuted.