Although not hit as hard as New York by the Covid 19 pandemic underway, Connecticut's workforce has been severely impacted. Workplace exposure to pathogens and toxic substances has long been recognized as compensable injuries under applicable law and those contracting the disease and manifesting symptoms should file administrative claims before the Workers compensation commission with the assistance of a lawyer. An employer has a well recognized duty to provide workers with a safe workplace under common law and Federal regulation. Likewise, a Contractor or third party that controls the premises or conditions of work that a non employee may be exposed to may have legal liability to those injured even if not directly employed by the party involved. The difference between the two entity types is not so much the question of the extent of the duty owed but more so the legal remedy that an injured worker has and the forum that this may be pursued.
By way of background, OSHA enacted the Occupational Safety and Health Act of 1970 to “establish a comprehensive regulatory scheme designed to assure so far as possible . . . safe and healthful working conditions for every working man andwoman in the nation.” Martin v. OSHRC, 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. §651(b)).29 U.S.C. § 654(a)(2) creates a duty by any employer (including a general contractor) running not only to its own employees, but also “a specific duty to comply with standards for the good of all employees on a multi-employer worksite.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 818 (8th Cir. 2009).. It is Connecticut's public policy to look to those entities that have the right to control workplace conditions to exercise that control in a way that protects the workforce, not only to one's own direct employees.Brennan v Occupational Safety Health Review Commission 513 F 2d 1032 ( 2d Cir 1975); OSHA safety regulations are admissible as evidence of negligence and proper for a jury to consider Wendland v Ridgefield Construction Services, Inc. 184 Conn 173 (1981).
A worker that contracts coronavirus at work due to exposure may file a workers compensation claim and seek benefits including medical care, wage indemnity and permanent partial disability benefits to the extent that the injury is permanent. Should a worker succumb to the disease and die, a claim for death benefits under the Connecticut workers compensation statutes may properly be filed. A worker that contracts Covid 19 due to the negligence of a third party or non employer may seek tort damages against that party in Superior Court and the financial award obtained would be damages for all of the above plus non economic damages which the workers compensation statutes would not allow. In some instances, both types of claims may be asserted.
Large employers like Amazon warehouse workers, Tyson and Smithfield foods meat plant workers have been exposed and contracted Covid 19. Connecticut has not been spared and employers are likely to fall under an increased scrutiny for the procedures and policies which they have adopted in response. Non essential workers able to work from home and not allowed to work at home may face consequences. Employees who contract the disease due to exposure to work due to the lack of personal protective equipment, particularly in the face of employer knowledge that other workers had contracted the disease beforehand may be particularly exposed as legal counsel may very well advocate the initiation of lawsuits against said employers for tort damages by way of challenging the employer immunity that might typically apply. Connecticut recognizes an exception where the employer places an employee in such a hazardous position that the risk of harm is substantially certain to occur even if not intended. A corporate policy that goes beyond neglect and ignorance may be the underlying reason why that occurs and lawyers will take up the mantle to hold them accountable should the facts warrant.
One question that arises is whether the person exposed to the disease has to actually develop symptoms and become ill. As a practical matter, filing a claim without that being true is unlikely to result in benefits or a meaningful financial award being received and thus it would be this Counsel's leaning to not pursue such a claim even though under Connecticut law, the exposure may be enough. For example, In Doe v. City of Stamford Court decision from the area of workers' compensation law, the Connecticut Supreme Court rejected a narrow definition of the term “injury” that would exclude compensation for exposure to a severe disease, until such time as the disease manifests. Id. at 698-99. While emphasizing the statutory interpretation of its decision, the Doe Court also points out that it would be “contrary to the humanitarian and remedial purpose of the [Workers' Compensation Act] to infer that the legislature intended that an employee who sustains actual exposure to a potentially fatal infectious disease must await the onset of the disease before he can recover expenses associated with necessary, and possibly lifesaving, medical intervention.” Id. at 699.
Be safe and stay healthy!