Will COVID-19 Cases Successfully Challenge Employer Immunity from Civil Claims Under the Pennsylvania Workers’ Compensation Act?

Pennsylvania employers are generally shielded from tort liability for work-related injuries under the Workers’ Compensation Act. Specifically, immunity for work related incidents is set forth in 77 Pa. Cons. Stat. § 481, which provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 Pa.C.S. § 481.

Pennsylvania courts have continuously affirmed the comprehensive nature of this exclusivity provision for civil immunity. Poyser v. Newman & Co., Inc., 522 A.2d 548 (Pa. 1987). When the exclusivity provision applies, Pennsylvania courts lack subject-matter jurisdiction to consider an employee’s tort claim and the employee’s claims must be dismissed. LeFlar v. Gulf Creek Indus. Park No. 2, 515 A.2d 875 (Pa. 1986).  

In Poyser, the Supreme Court of Pennsylvania barred a common law tort claim where the employee was injured by a machine made unsafe by his employer’s modifications. The employee alleged that his employer willfully disregarded his safety by forcing him to use a notching machine with no guard over the saw blades and fraudulently misrepresenting the condition of the unsafe machine by concealing it from federal investigators. The employee further argued that his employer’s willful and wanton disregard for his safety was the legal equivalent of an intentional tort, which should preclude the employer from the civil immunity afforded under the Workers’ Compensation Act. The Poyser court rejected this argument, holding that the intentional tort exception to workers’ compensation exclusivity simply does not exist in the Commonwealth and an employer’s protection from tort liability is nearly absolute regardless of how willful or wanton the employer’s alleged conduct.  

However, a narrow exception to employer immunity was recognized in Martin v. Lancaster Battery Co., 606 A.2d 444 (Pa. 1992). In Martin, the employer manufactured automotive/truck wet storage batteries. In his civil suit, the employee alleged personal injuries caused by workplace exposure to lead dust and fumes. The employee further asserted that the employer purposefully withheld his blood test results, which showed elevated lead levels, thereby concealing the employee’s injury and amplifying the severity of his condition by increased exposure. Based upon these allegations, the Martin court permitted the lawsuit to proceed against the employer, holding that the exclusivity provision did not immunize the employer from a common law claim of fraudulent misrepresentation that led to an aggravation of a pre-existing injury. Thus, to meet the Martin exception, a plaintiff must show an employer’s (1) fraudulent misrepresentation that (2) leads to the aggravation of a pre-existing medical condition. Since Martin, Pennsylvania courts have narrowly construed this exception.  

In the wake of the ongoing pandemic, we anticipate Pennsylvania employees may attempt to utilize the Martin exception in raising civil tort workplace claims against their employers related to COVID-19 infections. The likely target of such claims could be grocers or other retailers involving significant customer interaction. However, in order to prevail under Martin, an employee will need to establish fraud on the part of the employer in actively misleading its workforce concerning the risks of workplace exposure to the virus. This will require evidence of egregious conduct on the part of an employer by intentionally misrepresenting the true risk of contracting COVID-19 within the workplace. Likely claims may include allegations that management: (1) was aware other employees and/or customers exhibited symptoms of COVID-19 and failed to properly clean the workplace or warn other employees; (2) failed to promote social distancing guidelines; (3) failed to warn of the risk of contracting COVID-19 due to workplace exposure; and (4) failed to provide employees with personal protective equipment, such as masks or gloves. In order to specifically invoke the Martin exception, infected employees may also assert that their employers intentionally concealed or misrepresented the risk of contracting COVID-19 while on the job.  

These allegations are akin to those rejected in Poyser and will likely fail to rise to the level of fraudulent misrepresentation required under Martin. First, fraud carries a greater evidentiary burden than other civil claims. Each element of a fraud claim must be proven by clear and convincing evidence. Pittsburgh Live, Inc. v. Servov, 615 A.2d 438 (Pa. Super. 1992). This heightened pleading standard serves as an employee’s first obstacle.  

Next, unlike Martin, where the workplace hazard of lead exposure was specifically connected to the job, the risk and method of contracting COVID-19 by exposure to the novel coronavirus is not unique to the workforce of a specific employer. The risk is present to every person in every community and has been generally known to the public at large for some time. Most workplace infections will involve employers and employees who were forced, by factors outside of their control, to tolerate extraordinary conditions resulting in a certain number of injuries or illnesses. This differs drastically from employers actively deceiving employees, thereby increasing their chances of encountering a hazard unique to the job. As a result, it will be exceedingly difficult for an employee to establish that he or she was truly misled concerning the risk of contracting the virus due to on-the-job exposure.  

Moreover, to succeed under the narrow Martin exception, an employee must also establish that an employer’s fraud resulted in aggravation of an ongoing injury. An employee must, therefore, claim that he or she was already suffering from COVID-19 and ongoing exposure worsened an existing infection. Even if an employee is able to establish fraudulent concealment of the risk, establishing the aggregation element seems exceedingly unlikely from a factual and medical standpoint. For this reason, it is doubtful that the Martin exception will pierce the shield of immunity afforded to employers under the Pennsylvania Workers’ Compensation Act. In sum, Pennsylvania employers should be immune from common law tort claims asserting workplace transmission of COVID-19 under the exclusivity provision of the Workers’ Compensation Act.

*Joe is a shareholder in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.2006 or jvlesinski@mdwcg.com.

_{Defense Digest, Vol. 26, No. 1, Spring 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}