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Bloomberg Law Reports on STFBC Case Against Publix & Liability Shields


In a recent article, Bloomberg Law reported on the legal battle brewing between workers who have contracted COVID-19 at their jobs and employers who are seeking protection behind liability shields. The report reveals that pro-business COVID-19 liability shields have been enacted in over a dozen states, with as many as 20 more states following suit soon. The case for liability shields was based on the presumption that there would be a “flood” of litigation against businesses related to the pandemic.

However, the truth is there hasn’t been a flood of litigation.

In fact, the liability shield may be redundant because there are already sufficient laws to protect businesses where necessary.

Very few lawsuits alleging wrongdoing related to COVID-19 have made it to trial for two reasons: the high hurdle of proving “causation” and the preemption created by workers’ compensation laws. It’s proven extremely difficult for customers, visitors, or employees to prove that they contracted COVID-19 at a specific place, making it unlikely that most plaintiffs can build a case for such a claim. For workers who can prove they contracted COVID-19 in the workplace, workers’ comp bars them from bringing a lawsuit against employers with limited exceptions.

In other words, there is already a shield in place. The liability shield laws are making it more difficult for workers to bring forward legitimate cases. Attorney Stephen F. Cain has testified to that effect before the Florida legislature, saying, “We’re rushing into liability protections for big business. The reality is it’s the workers and the frontline folks who need relief.” A recent report from Law 360 agrees.

“It’s the Workers and the Frontline Folks Who Need Relief”

One of the problems workers face with COVID-19 lawsuits is a “double denial,” where they are barred from pursuing damages in trial because business-friendly laws keep them out of court and they are denied benefits under workers’ compensation at the same time. In these situations, workers have no remedy. However, in our Publix case, we recently overcame this problem when the judge denied Publix’s motion to dismiss the case by claiming it was barred by Florida’s workers’ comp law. We argued that workers’ compensation didn’t apply in this case because, among other reasons, Publix was knowingly negligent. The judge agreed that the attempt by Publix to get the case dismissed should be denied, and the case will now move forward as we gather evidence for use at trial.

What makes the Publix case unique is that the victim in our case, a 70-year-old deli worker, was forbidden from wearing a mask because Publix claimed that if he wore one, it would scare off customers. He was then exposed to a coworker who was exhibiting Covid symptoms while having no contact with anyone else, so it’s a near-certainty that he contracted COVID-19 at his job. Combined, these facts paint a clear picture that Publix behaved negligently, contributing to their employee’s death.

However, the fact remains: there are employees all over the country who have suffered from COVID-19 as a result of employer negligence, but very few of their cases will be heard. Not every worker will have the facts in their favor that our case has, but they still deserve a remedy for their damages. Liability shields will make it more difficult for workers to get the care they need. The law already provides sufficient protection to businesses. What we need is protection for injured workers and their families.

Read about our Publix wrongful death case and the dismissal denial that allowed our case to go forward.