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Robert O’Hara Quoted in “Covid Wrongful Death Suits Test Employer Liability to Families”

Bloomberg Daily Labor Report

Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Daily Labor Report, in “Covid Wrongful Death Suits Test Employer Liability to Families,” by Fatima Hussein, Jaclyn Diaz.

Following is an excerpt:

Families of workers who died of Covid-19 are suing businesses for allegedly failing to protect their employees from the virus, fueling ongoing calls from Republican lawmakers to shield employers from liability during the pandemic. …

Bypassing Workers’ Comp

Robert J. O’Hara, an employment attorney at Epstein Becker & Green P.C. in New York, said the legal burden is high for plaintiffs who want to bypass the workers’ compensation system and sue for wrongful death under gross negligence and other theories.

The biggest challenge for pursuing Covid-related wrongful death cases is whether or not the deceased employee contracted the virus on the job, O’Hara said. “The first piece of analysis is whether it’s work-related.”

The Occupational Safety and Health Administration announced in May that employers who are required to keep OSHA injury and illness logs must determine if workers’ Covid-19 cases are job-related. Previously, OSHA said only health-care employers, corrections facilities, and emergency-response providers were required to make that determination. …

Lobbying for Retroactive Protection

Businesses are also hoping the influx of personal injury and wrongful death lawsuits could be curbed with legislation that extends liability protections back in time to when the coronavirus pandemic began.

Lobbyists are calling on Congress to adopt this type of “retroactivity” a clause as part of the larger Covid-related legislation Senate Republicans believe can be finalized by mid-to-late July. …

O’Hara said he predicts more litigation as businesses contemplate reopening. “People are not even back to work yet, and we know things will heat up again.”