CORONAVIRUS

Coronavirus lawsuits are mounting

Gov. Kim Reynolds signed the COVID-19 Response and Back-to-Business Limited Liability Act on June 18, which limits liabi
Gov. Kim Reynolds signed the COVID-19 Response and Back-to-Business Limited Liability Act on June 18, which limits liability and provides a safe harbor for businesses and other persons who complied with regulations, executive orders, public health guidance related to COVID-19. (Brian Powers/Des Moines Register)
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The news and internet are full of stories about coronavirus lawsuits being considered, planned or filed. Legal experts anticipate a tidal wave of court activity in the wake of the pandemic’s economic dislocation, especially in fields such as insurance and debt collection.

Gov. Kim Reynolds signed the COVID-19 Response and Back-to-Business Limited Liability Act on June 18, which limits liability and provides a safe harbor for businesses and other persons who complied with regulations, executive orders, public health guidance related to the coronavirus.

The statute expressly provides that anyone in the state shall not be held liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance with regulations.

In addition, the law is retroactive to Jan. 1, 2020, which will eliminate any further liability.

Note, however, that someone still may be liable for actual injuries suffered regarding COVID-19 exposure if a person intended to cause harm or engaged in conduct constituting actual malice.

Similarly, while a property owner is not liable for civil damages for injuries sustained from someone’s exposure to COVID-19, the safe harbor does not apply if the property owner recklessly disregards a substantial and necessary risk or exposes someone to the virus to an act that constitutes actual malice.

The recent news regarding the three families suing Tyson Fresh Meats in Waterloo for the alleged death of family members who worked there, for example, contends gross negligence and fraudulent misrepresentation, claiming that the company allowed workers and subcontractors from another Iowa plant that had closed because of a coronavirus outbreak to begin working in Waterloo in April.

The suit apparently alleges that supervisors told employees their sick co-workers merely had the flu and warned them not to discuss coronavirus at work.

Whether such conduct is protected by the new safe harbor will be a matter for the judge to decide.

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Another unique employment lawsuit related to COVID-19 was filed several weeks ago by a former Dallas County jail employee.

He alleges he was fired because he called a Department of Corrections hotline to report concerns about working with a colleague infected with the virus, saying he would create a health hazard for jail employees and inmates.

The plaintiff claims the sheriff became angry when he learned about the plaintiff’s phone call to the hotline, accusing him of disloyalty and going outside the chain of command.

His lawsuit alleges a violation of the public sector whistleblower law and wrongful discharge in violation of public policy.

The Dallas County case gives us a foretaste of the kinds of employment claims that may follow after this unprecedented health crisis.

However, since the Iowa whistleblower statute only applies to public sector employees and is very narrowly interpreted, other Iowa employers should be more concerned about potential lawsuits for wrongful discharge in violation of public policy.

The new Iowa COVID-19 Limited Liability Act may not cover such lawsuits, as the injuries were not sustained from exposure or potential or to the virus.

These lawsuits are available if the plaintiff can prove she was fired for engaging in activity protected by a well-recognized “public policy.”

The Iowa Supreme Court has created four categories of protected employee activities:

• Exercising a statutory right

• Refusing to commit an unlawful act

• Performing a statutory obligation

• Reporting a statutory violation.

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For example, filing a workers’ compensation claim, reporting suspected child abuse or testifying in a lawsuit against an employer likely would be protected activities for which an employee could not lawfully be terminated.

Of course, given the countless number of laws and regulations that exist in Iowa, public policy exceptions have the potential to swallow the general rule that employees can either quit or be fired “at will.”

Thankfully, not every law or regulation on the books can support a wrongful termination lawsuit.

The policy must be well established and serve the public’s interest, rather than just the plaintiff’s interests.

In addition, remember that certain agencies such as the National Labor Relations Board, the Equal Employment Opportunity Commission and U.S. Department of Labor enforce statutes that expressly protect employees who participate in proceedings or engage in other protected activity such as contacting the agency.

Companies must prepare in advance to prevent and defend against these challenges by assigning someone in human resources or operations to carefully monitor frequently changing local, state and federal regulations relevant to their workplace and workforce.

As many of these lawsuits depend on the breach of some type of legal duty — sometimes established by the moving target of local, state and federal regulations or guidelines — it is imperative not only to have someone tracking these ever-changing standards as well as timely updating company policy as a result.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.

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