The avalanche of employment lawsuits to come out of the COVID-19 pandemic has begun earlier than expected. The first wrongful death lawsuit has been filed.
The estate of Wando Evans sued Walmart, alleging that lax safety caused his death due to COVID-19 complications. Evans died on March 25. According to his lawsuit, Walmart sent Evans home on March 23 due to illness, and several days later, another worker at the same Illinois WalMart store died of COVID-19. According to the lawsuit, several other workers showed symptoms of COVID-19 and/or coronavirus infection, but Walmart did not act to bar symptomatic workers from the store until after Evans died.
The lawsuit claims that Walmart knew or should have known of the high risk of infection and exposure in the store and had a duty to provide a safe work environment. The lawsuit alleges that Walmart failed to take precautions recommended by the CDC and OSHA by failing to implement cleaning, sterilizing, and social distancing guidelines and failing to provide PPE like masks, gloves, and soap. The lawsuit alleges that the employer should have shut the store down when it knew of COVID-19 symptoms and communicated exposure to workers.
Walmart has countered by expressing its sympathies over the death of two employees and insisting that it has implemented cleaning and sanitizing measures and provided social distancing barriers between employees and customers. Employers in essential businesses face these rock-and-a-hard-place decisions because they must continue to operate during stay-home orders and cannot 100% eliminate COVID-19 exposure risk to their employees.
It is unclear whether Evans’ estate will be successful in this lawsuit, as it appears that he has a high bar to overcome workers’ compensation immunity and pursue his lawsuit in court. In addition, Evans’ estate will have a difficult time showing causation because COVID-19 is unlike any typical industrial illness because it could have been caused by exposure virtually anywhere.