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Friday, October 23, 2020

COVID-19 Trends in Personal Injury and Employment Law

As hard it is to believe we are over seven months into the COVID-19 pandemic and the legal community is beginning to see some trends with regards to COVID-19 related litigation.  There are two trends in particular that should be noted: the increase in serious automobile accidents and the increase in lawsuits against individual owners and managers of corporations, as opposed to just the corporations themselves.

It has been pretty well established that traffic has decreased significantly since the first wave of shutdowns in March 2020, so it may surprise some that there has been an increase in serious automobile accidents since that time.  In fact, the number of motor vehicle fatalities per miles driven increased by fourteen percent in comparing March 2019 to March 2020 according to a National Safety Council report.  Since March 2020 there have been many serious accidents on the roadways despite a general decrease in the number of drivers.  One main reason behind this is that there is less traffic with less cars on the road, meaning drivers can drive at a much higher rate of speed.  If you are trying to go into Boston and are sitting in bumper to bumper traffic, the likelihood of getting into a fatal accident are much lower than if you can fly into the tunnels under the city at seventy miles per hour. 

There are several other suspected reasons for this trend.  If drivers are utilizing masks while driving, in rare instances, the driver can become lightheaded as an effect of the mask wearing causing them to become drowsy.  People who are driving while infected with COVID-19 (a fact of which may not even be known to them) may also be impaired from driving correctly.  Additionally, the general stress and depression that many are feeling right now are increasing the levels of road rage which can contribute to an increase in accidents.

The other trend that is being seen is an increase in litigation against individual supervisors, owners, and managers of corporations as opposed to just the corporation itself.  The common thread in these claims is that the individual that is being targeted in the personal injury claim or lawsuit is accused of not following proper COVID-19 safety protocols.  For example, if a company supervisor does not follow implemented social distancing and mask wearing protocols and his or her employees are exposed to COVID-19 as a result, the employees may sue the supervisor (either in addition to the company or instead of the company).  This bears a significant risk for the supervisor.  If the company mandates that proper protocols be followed and the supervisor ignores those protocols, the company may be able to separate itself from the supervisor, thus putting the entire blame for any personal injury on the supervisor.  For example, if the company instructs that masks must be worn inside an office setting at all times, and a supervisor regularly breaks that protocol, the company might be able to avoid liability to any employees of the supervisor (assuming the company did not or should not have known the supervisor was doing this).  That could leave the supervisor facing a lawsuit on his or her own without the benefit of any insurance coverage.  It has become very common place for employees to "gather evidence" of their supervisors and managers violating COVID-19 safety protocols by snapping pictures on their smart phones or downloading incriminating social media posts. 

The hardest element would, of course, be proving that any COVID-19 exposure actually came from the supervisor or manager.  However, there have been several highly public instances of various locations (ranging from a Walgreens Pharmacy to a house party on Cape Cod to a college ice hockey rink) being identified as a cluster source.  If you supervise or manage a location that becomes a COVID-19 cluster source, that could be hugely problematic for you because if there is evidence that you were complacent with COVID-19 protocols you could face a wave of personal injury claims and, possibly, wrongful death claims.

So what can be done to avoid ending up in this position?  First and foremost, follow the necessary protocols.  You do not have to like them, but adhering to the "better safe than sorry" mindset could be greatly beneficial.  If you are an employer, follow OSHA and CDC protocols and implement a written COVID-19 plan and guidelines for your company.  Outlining specific measures is recommended.  If you receive complaints from employees, take them seriously.  This point cannot be overemphasized.  Do not minimize any employee complaints no matter how unimportant you may feel they are.  Again, "better safe than sorry."  If an employee complains about another employee or supervisor not adhering to safety guidelines, do an investigation and provide a written (not verbal) warning.  If the behavior continues, it may be necessary to suspend or terminate that person's employment.  Make detailed records about the complaints made and the steps that were taken to address it.  That way if there is ever an outbreak (which can happen even when following safety protocols to the best of a company's ability), there is no question that the proper precautions had to be taken and this is just an unfortunate outcome as opposed to negligence which would lead to a lawsuit.

If you have any questions about COVID-19's impact on employment law or personal injury claims, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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