These days, employees with Covid-19 are trying in vain to prove “willful or wanton disregard for employee safety,” but even that can be insufficient to overcome the exclusivity provisions of the Pennsylvania Workers’ Compensation Act.

Workers’ compensation is the “exclusive remedy” for job-related injuries because, in most cases, it gives employers immunity from civil lawsuits in exchange for providing coverage to employees for medical costs, missed work and other injury-related expenses. It’s a big trade-off and is the nature of Workers’ Compensation in most of America. Employees that get hurt on the job must pursue their claims against their employer through the workers’ compensation system rather that in civil court.

In some cases, the exclusivity provision protects employers from financial ruin and at the same time, it guarantees an employee will be compensated. There are many situations when employees feel their injury was caused by gross negligence on their employer’s part and they try to fight for more than what workers’ compensation allows, but this provision is a stealthy one. Rarely does a judge rule against it.

A recent case, Barker v. Tyson Foods, Inc., No. 21-223 (E.D. Pa. Cec. 6, 2021), tested how exclusive the Workers’ Compensation law really is. The result: the court stood firm on the law and ruled in favor of the employer.

In this case, the Plaintiff’s decedent passed away allegedly from Covid-19 complications. The Plaintiff alleged that Tyson took no safety measures recommended by the Occupational Safety and Health Administration and the Center for Disease Control. For example, the employer did not required employees to wear PPE, maintained a work-while-sick policy, penalized employees for taking time off, and refused to provide paid sick leave.

As grossly negligent as this recent claim is, the case still didn’t have the muster to change the provision and grant an exemption to the rule.

What Are Examples of Exemptions?

There are only two exemptions to the exclusive remedy provision of the Pennsylvania Workers’ Compensation: intentional acts and failure to insure.

Intentional Acts

This is when someone intends to harm someone else. This can be a direct intent to harm someone (i.e. an employer really dislikes an employee and punches him/her in the face) or knowingly doing something that will certainly result in the harm to another. For example, in the case of Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992), an employer fraudulently altered a lead exposure test so an employee didn’t know he was working with a product contaminated with lead. This fraud kept the employee from seeking a transfer to safer work and kept the employee from seeking medical treatment. Fraud is an example of the intentional act exemption from the exclusivity provision. While rare, there are some cases where injured workers were able to sue their employer.

Failure to Insure

If an employer fails to carry workers’ compensation insurance, an injured worker can file either a workers’ compensation claim or a tort injury claim. There are benefits to both, so it’s best to talk to an attorney to find the most lucrative solution. An employer may pay the employee directly for his/her benefits or an employee can file a workers’ compensation claim through the Uninsured Employers Guaranty Fund. There’s a very strong chance the benefits will be paid through this fund, but the compensation may be more limited than those gained from a successful a tort claim.

Is Covid-19 an Exemption to the Exclusive Remedy Provision of Workers’ Compensation?

It is highly unlikely to fall under the intentional act exemption. Like in the case of the employee at Tyson Foods, it is extremely difficult to prove the employer intended to cause harm. The best chance of recovering lost expenses is through workers’ compensation. Regardless it is imperative to have your claim reviewed by a certified workers’ compensation lawyer.