Reckless Behavior by Businesses May Increase Their Legal Liability to COVID Claimants
More and more workers across the country are reporting concerns of Coronavirus Exposure to the Occupational Safety and Health Administration (OSHA). As of September 22, 2020, OSHA tallied 2940 complaints specific to COVID-19 (read their latest Whistleblower Data here).
As we have warned before, a great many employers in Illinois, Indiana, and the rest of the United States are failing to take reasonable and proper steps to protect their employees from COVID-19. For more, read:
- Coronavirus: COVID Violations, OSHA Inspections, and Employer Liability Claims in Indiana and Illinois
- Coronavirus on the Job: OSHA Failing to Keep Workers Safe from COVID-19 but New Notice May Help Victims Prove Their Legal Claims
- Coronavirus Reopening in Indiana and Illinois: Duty of Care to Protect Employees against COVID-19 Exposure
- Coronavirus Air Travel Lawsuits: Airlines’ Duty to Keep Plane Passengers and Crew Safe from COVID-19
- Coronavirus: School District Liability for COVID-19 Exposure in Indiana
- The Danger of Dying in Indiana or Illinois: COVID Is a Leading Cause of Death in 2020.
Despite OSHA, the Centers for Disease Control and Prevention (CDC), the National Safety Council, and many others are sharing guidance and information on how to keep workers in various industries safe from the potentially deadly virus, the reality is that many people continue to face work sites where they are in danger of contracting COVID-19 because of an employer’s breach of its duty of care.
Whistleblower Laws to Protect Coronavirus Whistleblowers
Whistleblowing is a key factor in protecting against hazards and risks faced by employees everywhere. In fact, whistleblowing is so vital that there is a proposed federal statute specific to Coronavirus exposure. It is called the Coronavirus Oversight and Recovery Ethics Act (“CORE Act”). The CORE Act would protect people against retaliation by their employer should they report waste, fraud, or abuse of government monies distributed to fight against COVID-19.
If passed, it will be one of a number of state and federal whistleblower protection statutes, all designed to protect workers who have the courage to speak up (see, e.g., the Sarbanes-Oxley Act, the Dodd-Frank Act). These laws work to protect workers who see dangers on the job site and want to report these dangers to the authorities, and they are needed to keep employers from firing the worker who speaks up, or otherwise retaliating against him or her.
Of importance in the Coronavirus Pandemic, however, is that any worker who files a complaint with OSHA for unsafe working conditions must proceed through the agency’s complaint process and is not able to file an independent civil lawsuit. For workers concerned about COVID-19 exposure, they must rely upon the OSHA administrative process and the filing of OSHA Complaints.
Breach of Employer’s Duty of Care as Gross Negligence
The impact of an employee deciding to act as a whistleblower over a concern that his or her employer is failing to protect workers from COVID-19 exposure will be life-altering for that courageous individual, of course. However, there is an additional ramification to the act of someone who speaks up to reveal that a company or business is disregarding safety precautions against the Coronavirus.
For their fellow workers and employees, as well as customers, clients, residents, etc., the whistleblower may support a number of claims for personal injury damages against the company made subject of the whistleblowing.
In some instances, this evidence may allow for claims to exceed a standard breach of the duty of care negligence claim, and take it into the realm of gross and reckless action where courts will provide for additional exemplary damages.
Reckless Behavior of an Employer to Protect Workers and Others
The Indiana Supreme Court defines gross negligence as “`… [a] conscious, voluntary act or omission in reckless disregard of . . . the consequences to another party.’ ” N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003). A finding of gross negligence is grounded on a primary showing of negligence, as it is the intentional failure to perform a duty in reckless disregard of the consequences. York v. Fredrick, 947 N.E.2d 969 (Ind. Ct. App. 2011), trans. denied.
The Illinois Supreme Court explains that “reckless” behavior involves “a course of action which shows an utter indifference to or a conscious disregard.'”Ziarko v. Soo Line RR, 641 N.E.2d 402, 408; 161 Ill. 2d 267, 279; 204 Ill. Dec. 178, 279 (1994).
Plaintiffs in Indiana, Illinois, and elsewhere who have filed suit against a company for damages resulting from COVID-19 exposure and harm resulting from contracting the Coronavirus may have support in the growing number of OSHA Whistleblower Complaints that are being filed against companies who are simply ignoring the necessary procedures to keep people safe.
COVID Injury Claims in Indiana and Illinois
In both Indiana and Illinois, people who become ill from exposure to the Coronavirus may have legal claims to file for personal injury damages against those who failed in their duty of care to protect against COVID-19 exposure.
These claims can include medical damages, lost wages, and other consequential expenses from their injuries, but in some instances where the exposure has been caused by shocking and obviously reckless conduct by the business owner or operator, then additional damages (exemplary or punitive) may be available to them.
For more on COVID-19, read:
- The Danger of Dying in Indiana or Illinois: COVID Is a Leading Cause of Death in 2020
- Roadway Death Rates Skyrocket during COVID-19: Warnings Issued for Labor Day 2020 Travel
- Emotional Distress Caused by COVID-19: Recognized Harm to Victims As a Legal Claim for Relief?
- Coronavirus: Nursing Homes in Indiana Reported to Have Almost Half of all COVID-19 Deaths
- Coronavirus and Semi-Truck Crashes in Indiana and Illinois: Deadly Truck Crashes During COVID-19 Quarantines.
The risk of exposure to the Coronavirus remains high in our part of the country. Please be careful out there!
