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As states (Georgia and others) begin to “open,” and employers in those states take their first tentative steps toward recalling furloughed workers to previously shuttered workplaces, they face a constantly shifting legal landscape and a host of litigation risks.  As a litigation boutique that represents employers, executives and workers, our purpose here is not to wade into the debate over the wisdom of such re-openings but, rather, to provide some (hopefully) helpful information to those weighing such difficult decisions—and those impacted by them.  This is the first in a series of posts addressing such issues, which we will update consistently over the coming weeks.  This first installment addresses coronavirus exposure litigation.

Coronavirus Exposure Litigation.  On April 6, 2020, the heirs of a COVID-19 victim filed what we believe is the first lawsuit against an employer alleging personal injury based on coronavirus exposure.  The case, filed in the Circuit Court of Cook County, Illinois, is captioned Toney Evans v. Walmart, Inc., Case No. 2020L003938.  You can find a copy of the Complaint here.  The decedent, Wando Evans, worked for a Walmart Supercenter and, tragically, died from COVID-19 complications.   The wrongful death lawsuit states claims against both Walmart and its commercial landlord.  The suit alleges that Walmart ignored employees’ coronavirus symptoms, neglected to properly disinfect its store, failed to provide workers with adequate personal protective equipment (PPE), and did not comply with guidelines issued by the Centers for Disease Control and federal and state governmental agencies.  As to the landlord, the suit alleges that it improperly permitted tenants like Walmart to continue operating without verifying their compliance with such safety guidelines.

Cases like this one, which we expect to proliferate, raise novel legal and factual issues, including those below:

  • Workers’ Compensation Exclusivity: Virtually every state maintains a no-fault workers’ compensation system intended to remunerate employees for workplace injuries they sustain.  Georgia’s Workers’ Compensation Act is found at C.G.A. § 34-9-1, eq seq.  Workers’ compensation statutes like Georgia’s generally forbid employees from bringing other types of claims against their employers except in very narrow circumstances—this is known as the doctrine of “workers compensation exclusivity.” In Georgia, the doctrine is codified in Georgia at O.C.G.A. § 34-9-11(a).   We can expect that the exclusivity doctrine will pose a significant obstacle to personal injury claimants—in Georgia, the rule is fairly iron-clad and our appellate courts have ruled “[e]ven the employer’s failure to furnish its employees with a safe place to work must be redressed under the Act”[1]—but it is too soon to say and variability in application of the doctrine exists among the states.  Nevertheless, even if the exclusivity doctrine ultimately proves fatal to most personal injury claims, employers may see a spike in workers’ compensation claims related to coronavirus exposure—prompting further litigation over whether such claims will be covered.

  • Legal Duty. The core elements of a negligence claim are (1) the existence of a duty to exercise reasonable care; (2) a breach of that duty; and (3) causation—proof that the breach of duty proximately caused the injury at issue.  On the first element, duty, it is not a stretch to assume that courts will conclude that employers owe a duty of reasonable care to their employees.  The question, in the coronavirus exposure context, will be what is the extent of that duty under the employer’s unique circumstances?  For example, do federal or local guidelines deem the employer’s work “essential”?  Are there industry-specific or location-specific guidelines which inform the employer’s duties?  Are there practical constraints—such as the absence of available testing or PPE—that must be taken into consideration when judging the employer’s conduct?  How will courts confronted with these questions define the scope of an employer’s duty?  At this juncture, more questions than answers exist.

  • Causation. Resolving causation questions in coronavirus exposure cases will likely involve complicated questions of law and fact.  For example, to what standard of proof will courts hold personal injury claimants?  In toxic exposure cases, which are somewhat analogous, courts require claimants to prove both general causation (that exposure to the toxic agent can cause the condition the plaintiff developed) and specific causation (that exposure to the toxic agent did, in fact, cause the plaintiff’s condition). Butler v. Union Carbide Corp., 310 Ga. App. 21, 25 (2011).   Satisfying this burden generally requires the claimant to present expert testimony from epidemiologists, medical experts, toxicologists and the like. McClain v. Metabolife, Inc., 401 F.3d 1233, 1237 (11th 2005).  Will courts require coronavirus exposure victims to meet this exacting burden?  Legal standard aside, will plaintiffs, as a practical matter, be able to prove that illness or death was COVID-related and traceable to a workplace exposure (as opposed to a non-workplace exposure)?  What of mitigating factors like a plaintiff’s underlying health conditions, health habits (such as hygiene and smoking), and personal compliance with social distancing guidelines (in a non-workplace setting)?  Again, at this point, more questions than answers exist.


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