A Pennsylvania meatpacking plant employee passed away from COVID-19 related complications on April 3, 2020, and his family filed a wrongful death suit in Philadelphia County on May 7, 2020 (Estate of Enock Benjamin v. JBS, S.A., et al). The complaint alleges that the employer, a large meatpacking plant, ignored guidelines imposed by the Centers for Disease Control and OSHA by failing to provide personal protective equipment (PPE), did not follow social distancing guidelines, discouraged workers from taking sick leave if they were ill, and failed to provide any testing or monitoring of employees’ health.
In addition, the complaint alleges that the employer failed to warn employees that other employees were infected with COVID-19 and misrepresented to workers that there was no risk of infection by coming to work, basically putting profits ahead of safety. The complaint also alleges that the employer willfully and intentionally withheld knowledge of COVID-19 infections in the workplace, that the workers relied on such misrepresentations and continued to show up for work, and that the workers then became ill.
From a general liability and workers’ compensation perspective, the most obvious question is whether the Pennsylvania Workers’ Compensation Act’s employer’s immunity/exclusive remedy provisions apply in this case. If so, those provisions would make workers’ compensation benefits the exclusive remedy for the deceased employee and his dependents. Section 303(a) of the Pennsylvania Workers’ Compensation Act, 77 P.S. §481(a), (the Act) provides expressly that the liability of the employer to the employee is resolved exclusively under the Act’s terms and provisions. Essentially, the Act’s exclusive remedy provisions bar direct tort actions against the employer, when those tort actions arise from any work-related injury.
Exceptions to the rule
There are, however, some rare exceptions to employer immunity including the exception pertaining to intentional acts/injuries alleged to be committed by an employer. Unless there is an intentional act by a third person or a co-employee, there is no other basis for a theory of intentional wrong to overcome the Act’s exclusive remedy provisions. Even a willful violation of Occupational Safety and Health Administration (OSHA) regulations will not overcome this provision.
In Higgins v. Clearing Mach. Corp., an employee sued an employer for injuries he sustained while operating a punch press as part of his employment. The employee alleged in his complaint: (1) that there were at least two incidents involving injuries to punch press operators at the employer’s facilities, due to a lack of appropriate equipment safeguards; (2) that the employer was fully aware that the operation of the unguarded punch press constituted a violation of the pertinent OSHA provisions; (3) that the employer permitted Higgins to operate an unguarded punch press; and (4) that the cause of Higgins’ injury was the “intentional, wanton and willful” conduct of the employer.
The court in Higgins noted that the employer’s alleged “intentional, wanton and willful” conduct comprised its repeated violation of safety regulations and its neglect of a known dangerous condition. However, the court in Higgins held that “even where neglect of a statutory duty is alleged, the employee’s only remedy is under the Workman’s Compensation Act,” and determined that this type of alleged conduct did not rise to the level of triggering an exception to the exclusive remedy provisions of the Pennsylvania Workers’ Compensation Act.
The facts need to be sufficiently outrageous to overcome employer immunity. In Martin v. Lancaster Battery Co., the Pennsylvania Supreme Court allowed a direct action against the employer where the employer made misrepresentations to the employee, and the employee was seeking damages for the aggravation of his condition caused by the misrepresentation.
In the Martin case, employees were exposed to lead dust and fumes. Under federal regulations, the employer was required to regularly test employee lead levels. The employer tested the lead levels, but intentionally and willfully withheld the results of the lead tests from Martin for three-and-a-half years. Moreover, when the employer-provided the test results, they had altered the actual findings.
As a result of the alteration and misrepresentation, Martin’s condition was aggravated due to his delay in getting medical treatment for his lead exposure. The court explained that the aggravation in Martin’s condition, found to be the result of the employer intentionally withholding his lead test results from him, was not covered by the exclusive remedy provisions of the Act. Therefore, Martin was permitted to pursue a cause of action for fraudulent misrepresentation against his employer.
As the Martin court explained, “There is a difference between employers who tolerate workplace conditions that will result in a certain number of injuries or illnesses and those who actively mislead employees already suffering as the victims of workplace hazards, thereby precluding such employees from limiting their contact with the hazard and from receiving prompt medical attention and care.” Significantly, the Pennsylvania courts have narrowly applied the Martin exception to cases involving an aggravation of a work-related injury rather than damages for the work-related injury itself.
Will COVID-19 change the remedy provisions?
While the allegations in the recently filed Benjamin complaint layout an unfortunate set of circumstances that culminated in the death of an employee, the civil action against the employer should be barred by the exclusive remedy provisions of the Act based on the facts as alleged. Thus the appropriate venue for this action would be found in the Pennsylvania Workers’ Compensation arena.
In the recently filed case on behalf of Benjamin and his estate, the question remains whether the courts will find the working conditions at the meatpacking plant to be sufficiently outrageous in this time of a global pandemic, and match the Martin circumstances.
Consider also that employers had to begin operating under a set of new guidelines from the federal government, state government, Centers for Disease Control & Prevention, and OSHA, and that these guidelines and regulations changed on an almost daily basis. While the facts as alleged certainly convey a sympathetic situation for the deceased employee and his family, all cases of this type have sympathetic factors. Nonetheless, Pennsylvania courts interpret the Act’s exclusive remedy provisions by placing an extremely high bar against recovery, even in light of the holding in Martin.
Sherri Dougherty is a partner with Weber Gallagher and defends manufacturing plants, staffing agencies, insurance carriers and self-insured employers in workers’ compensation claims in Pennsylvania. Contact her at [email protected]. Brian Dunstone is an associate with Weber Gallagher and concentrates his practice on defending employers and insurance companies in workers’ compensation matters. Contact him at [email protected].