What if you get Covid 19 (Coronavirus) while working because your employer failed to protect you from the virus? Can you sue your employer? Can you make a claim of Workers' Compensation? What if a loved one dies from Coronavirus (Covid 19) can you sue your employer for wrongful death?
Workers’ compensation law provides no-fault coverage for work-related accidents and “occupational disease.” However, unlike other states, Texas allows employers to opt-out of workers’ compensation law. If the employer has Texas workers' compensation insurance then generally they cannot be sued for their own negligence in failing to protect the employee from infection. But if the employer has Texas workers' compensation then the employee does not have to prove negligence to recover, they simply have to prove that the injury or the occupational illness occurred in the course and scope of their employment. However, Texas is unique in that many employers (some of the large some of them small such as Wal-mart and many trucking companies) are not required to carrier Texas workers' compensation insurance. If the employer does not carry Texas Workers' Compensation insurance (or they have their own occupation injury plan) they can be sued if they were negligent in causing the employees injuries or occupational illness. In the case where the employer does not carry Texas Workers' Compensation insurance, the employee must still prove that the employer was negligent in causing the injury or occupational illness.
Can employees whose work exposes them to a much higher risk of infection claim workers’ compensation benefits or lawsuits (if they don't have Texas Worker's Compensation) against their employer? Texas workers’ compensation law defines an “occupational disease” as a “disease arising out of and in the course of employment.” Tex. Lab. Code 401.011(34). However, law goes on to exclude “an ordinary disease of life to which the general public is exposed outside of employment". Does it make a difference whether some workers are exposed in a way very different from the general public’s exposure?
We don't really know these answers yet, but if the courts ultimately decide that illness due to the COVID-19 (Coronavirus) is not available under workers’ compensation law, then that may mean that both employers who do and those that don't carry workers' compensation may be liable for the death and illnesses caused by Coronavirus. As stated above, the general rule is that an employer who carrier Texas workers' compensation insurance cannot be sued by the employee, even if the employer was negligent in causing the employee's injury or occupational illness (this defense is known as the "exclusive remedy defense"), but the rule in Texas is that in an injury not covered under workers’ compensation law is also not subject to the exclusive remedy defense.
If your employer does not carry Texas Workers' Compensation or have their own Occupational Injury Plan, they are known as a non-subscriber (because they opted out of subscribing to Texas Workers' Compensation). A non-subscriber’s liability turns on the issues of negligence (did the employer fail to exercise due care in protecting its employees?), causation (did the employee contract disease because of the employer’s negligence?). As for negligence, recommendations of the Centers for Disease Control and the new OSHA guidelines on safe work practices during the pandemic will be important for proving what an employer reasonably could have done to prevent infection for employees who continue to deal face-to-face with the public or other employees. While employers might initially have reasonably asserted lack of notice about measures for protecting employees from contagion, that defense will become less persuasive over time.
The fact that it is possible to contract disease outside the workplace does not necessarily foreclose an employee’s proof that work exposed the employee to a much greater risk, and that a causal link to work and the employer’s negligence is likely. Finally, a nonsubscriber employer might have established an accidental injury insurance benefit plan combined with an arbitration agreement and waiver of the right to sue. Such an employer might believe its benefit plan protects it from liability for COVID-19 (Coronavirus) claims. In fact, an accidental injury plan might be no protection at all. To the extent that the benefit plan contains the same exclusion for “ordinary” disease as workers’ compensation law, a waiver of the right to sue might be ineffective. Thus, if the insurance company prevails on the issue of coverage, the result might be to expose the employer to unlimited liability.
Mr. Roger Davie - Bio
Mr. Roger Davie has been a practicing lawyer since 1985. He is licensed in both Texas (1985) and New Mexico (1986) and both the state and federal courts. Mr. Roger Davie is one of the few Board Certified Attorneys in Employment Law in El Paso who exclusively represents employees.
Mr. Davie started off his career representing employers and defendants and working for large law firms until he switched sides and started representing Employees in their claims for wrongful termination and workplace injuries. This gives Mr. Davie a unique perspective and allows him to better represent his clients. Mr. Davie exclusively represents employees and is one of the most experienced employment lawyers in El Paso. Mr. Davie takes cases in El Paso, Las Cruces, Southern New Mexico and far West Texas.
Mr. Davie only takes cases on a contingency so there is never a charge unless Mr. Davie receives a recovery for you.
If you have been wrongfully terminated or injured on the job you deserve to have a lawyer who is Board Certified by the Texas Board of Legal Specialization representing you in your claim. Almost every lawyer in El Paso who represents your employer is Board Certified by the Texas Board of Legal Specialization in Employment Law; you should have a Board Certified lawyer on your side as well.