The latest projections estimate that nearly 300,000 Americans will die from COVID-19 by the end of 2020. Many of those individuals will be employed when they contract the virus, and a significant number will be workers in front line businesses such as retail, manufacturing, or healthcare, where the risk of exposure is significant. Faced with the tragic loss of a loved one during unprecedented economic turmoil, many of these workers’ families will understandably choose to file wrongful death claims seeking to recover for their loss.

There has been talk of national legislation to provide liability protection for employers, but that has failed to materialize and looks increasingly unlikely. Instead, most employers will find their best defense to be their states’ workers’ compensation laws which generally limit employee lawsuits and require employees to follow an administrative process that imposes statutory limits on damages. These same workers’ compensation laws, however, often have an "out" for certain extreme cases where employees can prove they were injured because the employer acted with a high degree of culpability, typically ranging from gross negligence to intentional harm.

Wrongful death lawsuits therefore will have two seemingly high hurdles to clear before an employer could be subjected to the nightmare scenario; a trial by jury where millions of dollars in punitive damages could be at stake. Those hurdles are (1) proving COVID-19 was contracted in the course and scope of employment; and (2) proving the employer acted with the required level of intent to circumvent the exclusive remedy of workers’ compensation.