Ruling bars suit after COVID death, highlights worker safety concerns

A recent federal court ruling holding that a migrant farm worker’s death from COVID-19 fell within the scope of workers compensation law is part of a growing body of rulings that bar liability lawsuits related to the pandemic against employers.

The decision also highlights safety issues related to the housing of migrant workers during the pandemic.

According to the ruling in Garcia Rodriguez v. Blaine Larsen Farms Inc., heard in the federal District Court for the Northern District of Texas, Marco Galvan, a temporary farm worker on an H-2A immigration visa, entered an employment agreement with Larsen Farms on July 2, 2020, to work at its Dalhart, Texas-based farm. Under the terms of the contract, Larsen would provide Mr. Galvan with free housing, food, transportation and other necessities, including medical care.

On July 10, Mr. Galvan began to exhibit severe COVID-19 symptoms, but the employer failed to provide access to transportation or inform him of his right to seek medical care, court documents state.

The company had experienced rolling outbreaks of COVID-19 in its workforce since March or April 2020 and failed to inform Mr. Galvan of the outbreaks and risk at its facilities, particularly where dozens of employees were being housed in designated “quarantine housing” throughout its property, court documents say.

Mr. Galvan died on company property a few days later. His family sued Larsen Farms in state court and brought wrongful-death and survival claims. The case was removed to federal court and on Feb. 15, the federal district court ruled that his death was work related and that the workers compensation exclusive remedy barred the tort lawsuit brought against Larsen.

“The workers compensation-related court cases involving COVID-19 that we have seen so far, appear to be largely addressing two main issues,” said Jeff Eddinger, executive director at the National Council on Compensation Insurance, “whether contraction of COVID-19 is work-related and/or compensable under WC, and whether WC exclusive remedy bars tort suits brought against employers by employees or their families/estates, for alleged contraction of COVID-19 at work.”

NCCI has reported on 22 COVID-19-related cases in 11 states, and only one has allowed a tort lawsuit brought against an employer to continue – See’s Candies, Inc. v. Superior Court of California for the County of Los Angeles, which is pending.

Separately, after completing an investigation into the company, the U.S. Department of Labor accused Larsen Farms of violating Fair Labor Standards Act and failing to pay workers their full pay, among other things.

According to Jessica Looman, acting administrator at the department’s Wage and Hour Division, Larsen failed to meet its legal obligations, and the Office of the Inspector General determined that the employer subjected its workers to discrimination and intimidation when they asserted their rights.

“The pandemic highlighted the essential contributions agricultural workers – including workers in the H-2A visa programs – make every day to feed the nation and support our economy,” Ms. Looman said in a statement. “In return for their hard work, they must be paid all of their wages and protected from workplace hazards.”

The DOL also found that the employer violated the U.S. Occupational Safety and Health Administration’s temporary labor camp standards by failing to properly report communicable disease after an outbreak of coronavirus at the farm where two employees died, aligning with allegations made in the tort lawsuit.

Mitigating COVID-19 spread in employer-provided housing continues to be a top risk issue for the agriculture sector, safety professionals say. While COVID-19 restrictions lift in cities and states across the country, some states are doubling down on worker protections.

In Oregon, the state OSHA agency has repeatedly extended the temporary standards installed early in the pandemic to protect against COVID-19 in employer-provided housing, pushed by labor and health advocates.

“The unique exposures created in the labor housing environment – particularly in working situations requiring large numbers of workers – made these requirements necessary to reduce risk,” said Aaron Corvin, public information officer at Oregon OSHA.

“We believe our COVID-19 labor housing requirements have been protective for vulnerable workers, especially those who spend both their work and off-work hours at the employer’s location,” Mr. Corvin said.

To date, of the estimated 2.4 million farmworkers in the U.S., roughly 1 million COVID-19 cases have been confirmed, according to the CDC and the National Center for Farmworker Health, Inc. Moving forward, union groups like Farmworker Justice warn working conditions, such as crowded transportation, substandard housing and disproportionate access to health insurance and medical care continue in the sector.

This article was first published in Business Insurance.

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