COVID-19 Workers’ Comp Cases Will Increase in 2021
In the last quarter of 2020, the number of workers’ compensation claims filed in the state of Florida was far below what it had consistently been for much of the year. This is mostly likely due to the nation-wide drop in unemployment, but it’s a trend The Whisler Law Firm does not expect to continue as 2021 progresses.
Amid the workers’ comp claims filed last year, many of them were related to COVID-19. And while thousands of COVID-19 workers’ compensation claims were denied during the year 2020, we don’t expect that trend to continue in 2021 either. That’s because as the longevity of this new virus grows, so will the rules, regulations, and laws surrounding it, creating a more reliable pathway for successful claims. So if you have a COVID-19 workers’ compensation claim to file, we can help you understand your options moving forward.
Establishing Legal Precedent
Standard workers’ comp laws primarily cover “occupational diseases,” or diseases that arise out of employment. They selectively exclude “ordinary diseases of life,” such as the common cold or flu, and this is where establishing new law can get complicated, but not impossible. Various workers’ advocacy groups as well as lawyers like us are arguing that the risk of contracting COVID-19 is provably higher in the environment of select professions, meaning coronavirus should constitute a special case for filing a workers’ comp claim.
Arguing your COVID-19 workers’ comp case comes down to the establishment of legal precedent. Because there are no precedents yet in place specifically revolving around COVID-19, proper workers’ comp claims and compensations are in uncharted territory. But as the pandemic continues to unfold, laws will, in reaction, be specifically written in order to decide the best course of action regarding these specific claims. Legal precedent can only be established when a series of decisions are used to set a standard for other similar cases that will come to follow it.
In Florida, the number of workers’ comp claims related to COVID-19 dropped from 8,000 in July 2020 to just 1,000 in November 2020. In just four short months, employees across the state who believe they contracted the virus through their workplace or the duties their work requires of them became exponentially less hopeful about filing a successful case. But we don’t want you to follow the same suit. We believe 2021 will be an incredibly strong year for filing these types of claims, and you should believe it too.
Gutierrez vs. Publix Supermarkets
Sometimes it only takes a single case to begin establishing waves of precedent for other cases to follow. In the state of Florida, the case of Gutierrez vs. Publix Supermarkets may be the case to do just that. Gerardo Gutierrez was a Publix Supermarket deli employee at a store located in Miami Beach. When the pandemic first began, he requested to his employers that he be allowed to wear a mask while working and serving customers. But according to the lawsuit filed by his family, Publix told him he could not wear a mask at that time, claiming that allowing employees to don them would cause shoppers to panic.
Now, Gutierrez’s family is filing the lawsuit on his behalf because the 70-year-old contracted COVID-19 and died due to complications from the virus in April 2020. By the time Publix finally allowed its employees to wear face masks while working, Gutierrez was already at home sick with COVID-19. He passed away alone in his home, unable to be visited by his four children.
His children are suing the supermarket chain, alleging that their decisions regarding employee safety caused their father’s death. This lawsuit echoes other findings that have shown how Publix lagged behind their competitors when it came to adopting employee and customer safety in the wake of the newly emerging virus. The lawsuit references many complaints made by other employees to the Occupational Safety and Health Administration as well. Gutierrez wasn’t alone.
Now, the Gutierrez family is suing Publix for more than $30,000, saying that on March 27 and 28 of 2020, their father’s schedule required him to work alongside a co-worker who was showing symptoms consistent with COVID-19. But Publix’s no-mask policy at that point only allowed for employees to use masks if they had a doctor’s note.
After the co-worker tested positive, Gutierrez was sent home to isolate on April 2, but his family believes by then it was already too late. By April 6, he had a severe cough a fever, and tested positive for COVID-19 when he visited the hospital. That very same day, Publix finally began allowing their employees to wear reusable cloth masks. Again, knowing what we know now about this virus, the action seems too little, too late.
What the Future Holds
Cases like Gutierrez vs. Publix Supermarkets are exactly the kinds of legal cases that work to set legal precedent. But it’s not the only one of its kind. The family of a Walmart employee who died from COVID-19 complications in Illinois also filed a wrongful death lawsuit in April. Another lawsuit was filed against Tyson Foods in Illinois over an outbreak inside one of its meat-processing plants in Iowa. We can only expect more and more of these cases to be brought forward as 2021 progresses, whether they resulted in the victim’s death or not. The complications that arise from COVID-19 often result in excessive medical bills and lost wages from missed work, and if your workplace caused your contraction of COVID-19, we believe you have a workers’ compensation case to fight.
The challenge lies in proving you, as the employee, contracted COVID-19 in your place of work, or due to the nature of your work. As we carefully watch how the Gutierrez case and other cases unfold, we gain a better understanding of what kind of precedent will be established. This will ultimately lend to our ability to build a strong case on your behalf.
Florida lawmakers and even federal lawmakers have begun discussing legislation that would prevent workers from suing their employers over contracting COVID-19 from their workplace or job duties. But we can’t let that prospect deter us. If victims continue to bring cases forward, and we work with them to help establish the legal precedent we need, we can achieve the justice deserved.