If an employee contracted COVID-19 while on the job and passed away, can the family sue the employer for wrongful death?
As the country continues to reel from the coronavirus pandemic, new legal issues continue to arise. There has been talk in the media of people bringing wrongful death lawsuits against companies, alleging that the companies are responsible for the deaths of loved ones who contracted COVID-19 while at work. Is that a viable legal option in Maryland?
The answer would appear to be: almost certainly not. Maryland law is quite clear that if someone gets ill and passes away while on the job, the person’s beneficiaries are limited to seeking benefits via the workers’ compensation system, as opposed to being able to bring a civil suit (such as a wrongful death action) for monetary damages.
The Maryland Code of Labor and Employment Section 9-509 is entitled “Exclusivity of Compensation.” Subsection (b) of that statute states: “Except as otherwise provided in this title, the compensation provided under [the Workers’ Compensation title] to a covered employee or the dependents of a covered employee is in place of any right of action against any person.” In other words, if your loved one passes away as a result of a work-related illness, you are limited to seeking recovery by way of workers’ compensation benefits. Death benefits in a workers’ compensation situation can be quite substantial, but may be more limited than what someone could seek by way of a civil lawsuit.
The statute does provide for an exception. Section (d) states:
Exception — Deliberate act. — If a covered employee is injured or killed as the result of the deliberate intent of the employer to injure or kill the covered employee, the covered employee or, in the case of death, a surviving spouse, child, or dependent of the covered employee may:
(1) bring a claim for compensation under this title; or
(2) bring an action for damages against the employer.
The exception provides an option for bringing a civil lawsuit if the employer committed a “deliberate act.” This is a very high bar to overcome, however. Maryland’s highest court held that an employer has committed a “deliberate act” only when the employer “decided to injure [the employee], that the employer committed some act to accomplish this goal, and that as a direct result of the employer’s action [the employee] was injured.” Johnson v. Mountaire Farms of Delmarva, Inc., 305 Md. 246, 258 (1986). That case makes clear that even if the employer is reckless or willfully negligent by placing its employees in a dangerous position, such action is not sufficient to allow the employee to bring a civil suit for damages. The employee has to show that the employer intended or desired for the employee to get sick or injured.
Turning to the current pandemic, many people in Maryland may feel that their employers acted wrongly by forcing them to come into work during the pandemic, or by not providing sufficient PPE. Those people may be justified in their feelings, and obviously if someone got sick at work from COVID-19 and passed away, that is a tragedy for which the family should be entitled to some benefits. However, the law in Maryland makes clear that the family will likely be limited to seeking those benefits by way of the workers’ compensation system, as opposed to by way of a civil lawsuit (unless there is some evidence that the employer knowingly desired for the employee to contract the disease and therefore placed him or her in harm’s way).
Our attorneys are happy to answer your questions regarding work-related COVID 19, or any other question relating to workers’ compensation in Maryland. Please call us at 410 787 0022 to set up a free consultation.
 This article deals only with the situation where an employee contracted COVID-19 while at work and passed away. There may be other situations in which someone contracted COVID-19 and passed away, and where a different legal analysis would apply.