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‘Take-Home COVID-19’ Claims: Preparing for a Second Wave of Coronavirus Litigation

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The Spanish Influenza epidemic came in three waves, with the first hitting in March 1918, the second in the fall and the third in the winter of 1919. The U.S. Centers for Disease Control and Prevention considers the second wave to have been the most deadly. In the United States, well over half of the epidemic’s death toll of 675,000 occurred during the second wave. It is no surprise then that public health experts were already warning of the possibility of a second wave of the coronavirus pandemic when the world was just beginning to acknowledge that the first wave was upon it in February.

Personal injury mass litigation also comes in waves. Consider asbestos: In the first wave, individuals who worked directly with asbestos filed workers compensation claims. Workers exposed to asbestos in products filed products liability suits during the second wave. A third wave included “take-home asbestos” claims in which workers’ children and spouses sued for illnesses caused by exposure to asbestos fibers taken home from work. A fourth wave is now underway with the alleged asbestos contamination of consumer talc products.

The first wave of personal injury coronavirus litigation emerged in early March when a married couple sued Princess Cruise Lines for gross negligence for placing “…profits over the safety of its passengers, crew, and the general public in continuing to operate business as usual.” Many similar individual and class action lawsuits have followed. According to an analysis by the Miami Herald, some 3,600 cruise line passengers have contracted COVID-19 and more than 100 have died. 

The situation in nursing homes is far worse. Nursing home residents account for an estimated 40% of U.S. coronavirus deaths thus far. Predictably, wrongful death suits filed by the family members of nursing home residents are surging, even as some states move to shield nursing home operators from liability. Personal injury lawsuits have also been filed against hospitals, meatpackers, restaurants, grocery stores and warehousing operations.

However, as the first wave of the coronavirus pandemic subsides, personal injury litigation may subside along with it. But what if the pandemic has a second wave? Although there is a great deal of uncertainty, public health experts now believe that there is no inherent seasonality to COVID-19 itself, but they remain deeply concerned that a combination of complacency and greater indoor activity could lead to a second wave of infections in the coming months.

What would a second wave of coronavirus personal injury litigation look like? One possibility that modelers at Praedicat are considering is a wave of “take-home COVID-19” litigation arising from occupational infection, coupled with high rates of intra-family transmission. Praedicat modelers estimate that 7-9% of COVID-19 deaths in the first wave have been family members of workers in essential industries who acquired coronavirus at work. With widespread testing and improved contact tracing, take-home transmission could be relatively easy to demonstrate during a second wave. The first take-home COVID-19 lawsuits were filed in August against an electrical supply company and a meatpacking facility, and the precursors to these complaints are present in earlier lawsuits filed against Amazon and McDonald’s.

Many public health officials believe that it is entirely within our power to keep a second wave of the virus from forming while we wait for a vaccine to be developed and deployed. A unified and steadfast public health campaign is critical if we are to avoid a second wave, individual companies working to limit transmission among their workers and customers is as well. First and foremost, this means closely adhering to federal, state, and local guidelines and industry best practices regarding disinfection, screening and testing, social distancing, and the use of masks and other personal protective equipment. Employers might also work to raise awareness of take-home exposure and the risk to vulnerable older family members or those with pre-existing conditions like diabetes that have been shown to elevate the risk of life-threatening complications associated with COVID-19.  Depending on the circumstances, maintaining social distance at home may be just as critical as maintaining social distance at work.

While a second wave of the pandemic may be unlikely, some level of infection, illness, and litigation is sure to be with us until there is a vaccine. The best protection against liability is making the safety of workers and customers paramount. But risk managers need to prepare for the worst and should also be reviewing the availability of coverage for employment related coronavirus claims, including take-home exposure. The employers liability exclusion under a general liability policy, for example, might exclude claims made by the family members of workers.

Twist and Shout: Avoiding Workplace Injuries with Risktech

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This week’s inaugural RIMS Risktech Forum highlighted many of the ways technology is changing how risk professionals approach their work, and the advantages of embracing new innovations. During the “What Can Risktech Do for Me?” panel, Mike Poulos of Marsh LLC, Jen Thorson of data analytics firm Modjoul, and Susan Shemanski, vice president of risk management for Adecco Employment Services discussed one of the practical applications of risktech—wearable workplace technology—to prevent injuries and unsafe behavior, protect workers, and mitigate liability for employers. In the course of normal business for many companies, employees in physically demanding jobs can twist, reach and otherwise strain their bodies in different ways that can lead to both immediate and long-term injuries.

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New technology offers a way to mitigate these risks.

After an overview of the general field of wearable risktech devices and their benefits, the panel discussed a real case of how a company implemented a program using belts that would track and collect data on employees’ movements, including twisting and reaching. The result, they said, was discovering multiple literal pain points for their employees and their company, and it may change how risk managers can root out and address risks like healthcare and insurance costs, employee health, morale and attrition, and even equipment costs.

For example, the panelists noted, one employee experienced pain when reaching bins on a bottom shelf as part of her work and even repurposed one of the bins as a stool for more comfort.

Another, whose job consisted of labeling packages, had to stretch to reach the label printer, aggravating their back in the process.

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The belts provided data showing these strains, and the company adjusted the employees’ work spaces to alleviate them. After gathering and analyzing the data from the belts, the company hired an ergonomist and conducted employee training to reduce unsafe conduct, even using the data to produce a new training video for incoming employees.

The panelists stressed communication as an essential part of the adoption process, and noted the importance of addressing employee concerns—including whether the belts would collect blood alcohol level or heart rate (no to both)—before implementing the program.

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To preempt privacy concerns and protect employees’ personal information, the company also anonymized the data the belts produced.

The benefits for companies from using this type of risktech are tangible and significant. Making work less dangerous for employees in physical jobs and reducing accidents and injuries can mean happier and healthier workers. This, in turn, can also positively affect productivity and attrition. Additionally, preventing workplace injuries can reduce healthcare costs, and companies can even sometimes use the data from wearable risktech devices to secure lower rates from their insurers.

As the panelists noted, in a tight hiring market, businesses may have to hire less experienced workers for physically demanding jobs, and monitoring physical movements can also help identify which employees may be doing dangerous things and need additional training. For example, ensuring that a relatively inexperienced forklift operator is not performing unsafe physical movements can prevent potentially catastrophic accidents that hurt the employee, the equipment, the company’s bottom line, and even its reputation.

Similarly, other panels at the forum showed how risk managers can use technology to address the risks their companies face, including utilizing artificial intelligence and machine learning, blockchain technology, and other innovative ways to harness data. For more information on how insurers and risk managers are using blockchain to change how they approach risk, check out the recent Risk Management articles “Can Blockchain Improve Insurance?” and “Strengthening the Links: How Blockchain Can Help Manage Supply Chain Risk.”

Workplace Safety Tips for the Total Solar Eclipse

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On August 21st, a total solar eclipse will be visible from North America for the first time in nearly 40 years. Many employers across the country will host viewing parties or may allow employees to take an extra break to observe the phenomenon, while those who employ outdoor workers can expect employees to have a front-row seat for the big event.

It is important to remember that such eclipses can expose workers to safety and worksite hazards, however. For example, outdoor workers should be sure to turn off any equipment or machinery before sun-gazing.

So what further information can employers pass on to reduce the risk of worksite and on-the-job injuries? NASA’s Total Solar Eclipse safety page suggests the following:

  • Never look directly at the sun.
  • If you are within the path of totality, remove your solar filter only when the moon completely covers the sun’s bright face and it suddenly gets quite dark. Experience totality, then, as soon as the bright sun begins to reappear, replace your solar viewer to look at the remaining partial phases.
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  • Use eclipse glasses and handheld solar viewers verified to be compliant with the ISO 12312-2 international safety standard for such products.
  • Always inspect your solar filter before use; if scratched or damaged, discard it. Read and follow any instructions printed on or packaged with the filter.
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  • Do not look at the sun through a camera, a telescope, binoculars, or any other optical device while using your eclipse glasses or hand-held solar viewer — the concentrated solar rays will damage the filter and enter your eye(s), causing serious injury.
  • Keep normal eyeglasses on, if normally worn, and place eclipse glasses over them.
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Check out the map below to see if your business is in the path of totality for the upcoming eclipse:

total solar eclipse map

Lessons from Distracted Driving Awareness Month

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June is Distracted Driving Awareness Month, and while it is quickly drawing to a close, the message remains: Distracted driving is escalating, with 25% more vehicle accidents resulting from drivers talking or texting on cellphones. More cars on the road, especially during summer months, also translates to more accidents.

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Organizations with fleets should take note as motor vehicle crashes are the number-one cause of work-related deaths, accounting for 24% of all fatal occupational injuries, according to the National Safety Council (NSC). On-the-job crashes are also costly, with employers sustaining costs of more than ,500 per property damage crash and 0,000 per injury crash.

Zurich sums up NSC statistics:
Employers can and are being held liable for damages resulting from employee accidents. “We might expect an employer to be held liable for a crash involving a commercial driver’s license holder who was talking on a cell phone with dispatch about a work-related run at the time of an incident—especially if the employer had processes or a workplace culture that made drivers feel compelled to use cell phones while driving,” the NSC said.

The lines believed to exist between employment-related and personal or private life get blurred in some cases involving:

  • Cell phones owned by employees as well as employer-provided equipment
  • Vehicles that were employee-owned as well as employer-owned or leased
  • Situations where employees were driving during non-working hours or were engaged in personal phone calls

To protect themselves and their employees, the NSC recommended that organizations implement and enforce a total ban policy.

“The best practice is to prohibit all employees from using any cell phone device while driving in any vehicle during work hours or for work-related purposes. Regarding off-the-job hours, precedent has been set by lawsuits.

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Thus employers may want to extend their policies to cover off-the-job use of company-provided wireless devices, use of personally-owned devices that are reimbursed by the company, and use of devices in company-provided vehicles. All work-related cell phone use while driving should be banned 24/7,” the NSA advised.

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Companies should also pay attention to other common distractions that can lead to accidents, Zurich adds: