A frozen yogurt dealer in Durango, Colorado, offered customers discounts for not wearing masks. Someone in town thereafter apparently got upset and busted out the dealer’s front window. He, in response, apparently affixed a sign to his establishment: “I shoot to kill.”
As an aside, workers work in that shop.
According to the Iowa Capital Dispatch, “[a] wrongful death lawsuit [against Tyson Foods] tied to COVID-19 infections in a Waterloo pork processing plant alleges”:
The company vigorously disputes the allegations. It has raised a Defense Production Act defense that should not succeed (but provided a basis for the company to remove the case to federal court). But Iowa passed a civil immunity law last June that “covers businesses that include meatpacking plants, hospitals and nursing homes. It limits suits by employees, customers and family members to cases involving coronavirus-related hospitalizations or deaths. They can also sue if they can prove a business owner intended to make people sick.”
Colorado rejected such a law last summer, but a number of states have enacted them. (We’ll see if those “shields” stay in place once the body politic has a better idea of where the costs of illness have been shifted).
How do I like the Iowa wrongful death suit? Technically, I think employees intentionally injured by their employers are not covered by the exclusive remedy rule of the Iowa Workers’ Compensation Act.
(For a discussion of the difficulties workers face proving causation in COVID-related workers' compensation claims, see here).
On the one hand, I found an Iowa case this morning that somewhat incredibly held that the exclusive remedy rule applied in the case of a supervisor who killed an employee by punching him in the chest after becoming angered that the employee had revealed alleged sexual indiscretions between the supervisor and a co-employee of the deceased employee.
Technically, the deceased employee had consented to the “chest shot,” but how in the world could a 19-year-old employee in such a power dynamic imbalance effectively have consented?
So, no, I do not like the idea of these Iowa wrongful death claimants being caught up in the murky world of “intent” and "wantonness/willfulness" based on the little I have seen of Iowa law. And, of course, just because you "escape" workers' compensation exclusive remedy does not mean you will escape the Iowa civil immunity law.
The point? To be an “ordinary,” little-person worker in the employment jungle that has been emerging over the last two decades is generally a very dangerous thing (regardless of macropolitical events on the national stage). To be an ordinary worker in the land of COVID, without realistic hope of legal or administrative remedy, is some significant order of magnitude more dangerous.
My boss invites customers not to wear masks and takes bets on whether I will survive. Would any rational person enter into this kind of social contract? Do not laugh at me when I invoke the Constitution. This is simply appalling.
Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.
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