Returning to Work: Avoiding Workplace Tort Claims

As we navigate the unchartered regions of pandemic workplace issues, employers should do their best to avoid tort-infested waters. For employees who have remained at work and for those who are just returning, employers should be aware of two potential tort claims and alter course when necessary.

I. Co-Employee Gross Negligence Claims

As a general rule, recovery under the Iowa Workers’ Compensation Act is the exclusive remedy for workplace injuries. Thus, if it is proven the contraction of COVID-19 arose out of and occurred in the course of employment, employees are limited to only the recovery of workers’ compensation benefits, and are precluded from bringing a tort action against their employers and co-employees. However, one exception to this rule is where the injury is caused by a co-employee’s gross negligence, amounting to “such a lack of care as to amount to wanton neglect for the safety of another” [Iowa Code § 85.20(2)]. In such circumstances, the worker can bring a workers’ compensation claim as well as a gross negligence tort action. Co-employee gross negligence claims are more common against co-workers in supervisory roles.

In the context of COVID-19, it is not difficult to imagine some possible circumstances giving rise to a co-employee gross negligence claim. For example, a claim could arise where an infected employee knowingly returns to work and infects another employee. A claim may result if a supervisory employee directs a subordinate employee to work without sufficient protective equipment or in a known contaminated area. Undoubtedly, there are multiple risky scenarios given today’s reality.

To prevail in a gross negligence claim, it must be proven the co-employee: (1) had knowledge of the peril to be apprehended; (2) had knowledge that the injury was “probable” as opposed to a “possible” result of the danger; and (3) consciously failed to avoid the peril [Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981)]. The Iowa Supreme Court later commented that “this tripartite test is necessarily a stringent one because undesirable consequences could result from improvidently holding a co-employee liable to a fellow employee [Walker v. Mlaker, 489 N.W.2d 401, 415 (Iowa 1993)].

Because gross negligence claims have been severely restricted by the legislature and case law, they are often unsuccessful. Generally, the most difficulty lies in proving the co-worker had knowledge the injury was a probable as opposed to possible result of the danger. This second element of the test requires more than a showing of the coworkers’ knowledge or “actuarial foreseeability – even certainty – that accidents will happen” [Heinrich v. Lorenz, 448 N.W.2d 327,334 n.3 (Iowa 1989)]. The probability prong is not satisfied by simply asserting that the co-workers knew that “sooner or later” someone would be injured [Id]. It must be shown the coworkers knew their actions would place the plaintiff in such “imminent danger” that he or she would more likely than not be injured [see, Hernandez v. Midwest Gas Co., 523 N.W.2d 300, 305 (Iowa Ct. App. 1994)].

Although most co-employee gross negligence cases fail (dismissed on summary judgment), as more medical and scientific data becomes available about COVID-19 contraction, the elements of the claim may be easier to prove in certain circumstances. Given the highly contagious nature of the virus, this could be particularly true in workplaces where infections have been prevalent and safety precautions were not observed.

II. Public Policy Wrongful Discharge Claims

This crisis has resulted in many employees losing their jobs, and some being fired. Some employees may believe (correctly or incorrectly), that they are entitled to workers’ compensation and allege they were fired for pursuing these benefits. Other employees may believe they are protected by the American with Disabilities Act and allege they were fired because of their disabled status. Claims could be brought against their employer for wrongful discharge in these and other circumstances considered against public policy.

For over 30 years the Iowa Supreme Court has held that an at-will employee allegedly terminated for pursuing the statutory right to workers' compensation could assert an action for wrongful discharge [see Springer v. Weeks & Leo Co., Inc., 429 N.W.2d 558, 560-61 (Iowa 1988)]. The court emphasized that its decision in Springer involved a discharge that was alleged to be in violation of a "clear expression" of a public policy of the state. The court stated: "We believe a cause of action should exist for tortious interference with the contract of hire when the discharge serves to frustrate a well-recognized and defined public policy of the state" [Springer v. Weeks & Leo Co., Inc., 429 N.W.2d 558, 560-61 (Iowa 1988)]. In Niblo v. Parr Mafr. Inc., 445 N.W.2d 351 (Iowa 1989), the Iowa Supreme Court extended the Springer doctrine to cases in which the plaintiff-employee is discharged for threatening to file a workers' compensation claim. It is not necessary for a Plaintiff to have a legitimate workers’ compensation claim to pursue a wrongful discharge claim.

The plaintiff in a Springer case need only prove her filing of a workers' compensation claim was a "determining factor" in the employer's decision to discharge her [Springer v. Weeks & Leo Co., 429 N.W.2d 558 (Iowa 1988)]. The court explained that a determining factor: "need not be the main reason behind the decision. It need only be the reason which tips the scales decisively one way or the other" [Springer v. Weeks & Leo Co., 429 N.W.2d 558 (Iowa 1988)].

To recover under the public policy wrongful discharge claim, a plaintiff must establish: (1) engagement in a protected activity; (2) adverse employment action; and (3) causal connection between the two [Hulme v. Barrett, 480 N.W.2d 40, 42].

Under Iowa law, the Iowa Supreme Court has recognized tortious discharge claims where a plaintiff alleges they were terminated for pursuing workers’ compensation benefits, refusal to submit to an unlawful polygraph examination, and refusal to violate federal law. [see Springer v. Weeks & Leo Co., 249N.W.2d 558 (Iowa 1991); Niblo v. Pan Mfr., 445 N.W.2d 351 (Iowa 1989); Lara v. Thomas, 512 N.W.2d 777 (Iowa 1994); Wilcox v. Hy-Vee Food Stores, Inc., 458 N.W.2d 870, 872 (Iowa Ct. App. 1990); Smuck v. Nat'l Mgt. Corp., 540 N.W.2d 669 (Iowa Ct. App. 1995)]. In addition, laws like the Occupational Safety and Health Act, the Americans with Disabilities Act and the Family Medical Leave Act outlaw terminating an employee who believes they are protected by that law and is terminated for claiming protected status.

As we return to the workplace, Iowa employers should: (1) follow governmental directives; (2) adhere to medical and scientific guidelines; (3) emphasize employee safety; (4) provide return-to-work training for all employees, particularly those with supervisory roles; and (5) exercise patience and caution when dealing with frightened or anxious employees.

Please contact your Nyemaster Goode attorney if you have additional questions about preparing your workplace for a post-pandemic world.