PA Update – In an era of COVID-19, an employer’s willful and wanton disregard of their employee’s safety does not waive the Workers’ Compensation Act immunity from civil suit
In December 2021, the Eastern District of Pennsylvania addressed the issue of whether an employer’s willful or wanton disregard for an employee’s safety by deliberately exposing its employees to the COVID-19 virus was sufficient to overcome the exclusivity provisions of the Workers’ Compensation Act in Barker v. Tyson Foods, Inc., No. 21-223 (E.D. Pa. Dec. 6, 2021).
The action was brought by Renata Barker in the capacity of Administratix of the Estate of her husband Brian K. Barker and in her own right. Mr. Barker was a supervisor at the Original Philly Cheesesteak Company meat packing plant, which was “owned, supervisor, and controlled” by Tyson Foods, Inc. (“Tyson”). On March 9, 2020 both OSHA and the CDC recommended workplace social distancing and the use of protective equipment to prevent the spread of COVID-19. Ms. Barker alleged that Tyson took no safety measures making work conditions more hazardous. She alleged Tyson did not require its employees to use PPE, and maintained a work while sick policy. In addition the company penalized those who took time off and refused to provide paid sick leave. Ms. Barker alleged that her husband who suffered from diabetes and high blood pressure was exposed to particular dangers. She alleged Tyson required on two separate occasions that Mr. Barker deliver a laptop to a manager in the company who had tested positive for COVID-19. On April 2, 2020 the company instructed Mr. Barker to take the temperature of workers without equipping him with adequate PPE. In addition they provided no training on how to safely perform such temperature checks. On April 7, Mr. Barker tested positive for COVID-19, and subsequently died on April 23, 2020.
Ms. Barker originally filed her Complaint in the Philadelphia County Common Pleas Court. She named as Defendants Tyson, and its purported subsidiaries, Original Philly Steak and Original Philly Holdings. Ms. Barker alleged her husband’s death arose as a result of the Defendant’s managerial response to the pandemic. Specifically, she alleged (1) negligence, (2) fraudulent misrepresentation, (3) intentional misrepresentation, (4) wrongful death, and (5) recovery under the Pennsylvania survivors act. Ms. Barker never served the Original Philly Steak. Following the parties’ arguments as to jurisdiction between state and federal courts, this case was ultimately removed by the Defendants to the U.S. District Court for the Eastern District of Pennsylvania.
Tyson moved to dismiss Plaintiff’s claims, arguing that they were (1) barred under the Workers’ Compensation Act; (2) inadequately plead; and (3) preempted by federal law. The Court agreed that the Pennsylvania Workers’ Compensation Act barred Plaintiff’s claims. The Court noted that the Pennsylvania Supreme Court has held that Workers’ Compensation is the exclusive remedy for job related injuries. Furthermore, an employee may not bring actions at common law against an employer for injuries within the scope of employment. Under the act, Original Philly Holdings, a Tyson subsidiary was immune from Plaintiff’s civil claims.
After issuing his original memorandum, the judge ordered the parties to address how the litigation should proceed in light of the immunity ruling. Tyson argued that as Barker’s employer it was immune from suit. Ms. Barker essentially ignore the Court’s Order and repeated factual allegations which had been stated in her Complaint. As part of that repeated statement of allegations, Ms. Barker confirmed her husband’s employer was Tyson who controlled his working conditions thereby under scoring Tyson’s argument that it was immune under the Pennsylvania Workers’ Compensation Act. The Plaintiff went on to argue that Tyson could not be immune because the Pennsylvania Supreme Court has held an employee can have only one immune employer. However, the Pennsylvania Supreme Court has held only that: (1) when applying the act, a parent and its subsidiary must be regarded as separate entities; and (2) a parent indirectly benefiting from the work of a subsidiary employee does not automatically make that parent an employer. The judge indicated that Pennsylvania Courts have explicatively held an employee may have more than one employer for purposes of the act. The Court noted the exclusivity provision does not refer to the liability of the employer, but an employer and the act states that whenever singular issues are referenced the plural shall be included. Moreover, all such employers under the act are entitled to immunity.
Under the Pennsylvania Workers’ Compensation Act an employer is an entity or person that controls and directs the manner and method of work the employees perform. In a parent subsidiary relationship, when the employee acts in furtherance of the functions of both the parent and subsidiary the Court must look to other indicia of the right to control to determine which party or parties is the employer.
In this case, Plaintiff’s own repeated allegations confirm Tyson was the decedent’s employer. The Plaintiff in her Complaint alleged Tyson owned, operated, managed, and otherwise controlled the meat packing plant and sold meat products under the brand name Original Philly Cheesesteak. Her allegations also allege Tyson failed to provide PPE, mandated employees work conditions, enforced a work while sick policy, refused sick leave, threaten termination and refused to close the meat packing plant, explicitly instructed the decedent to take the temperatures of his co-workers arriving at the plant and directing him to deliver a laptop to a known COVID-19 infected manager. Plaintiff’s averments and allegations confirm that, under the act, Tyson was the decedent’s employer.
Finally Plaintiff argued that her fraudulent misrepresentation and intentional misrepresentation claims fall outside the Pennsylvania Workers’ Compensation exclusivity provision. The act allows a limited exception to exclusivity, allowing claims for aggravation of an employee’s work related injury where the employer’s fraudulent misrepresentation has been alleged. The employer’s misrepresentation must result in an aggravation of a pre-existing injury. Alleging that an employer showed a willful and wanton disregard for employee’s safety is insufficient to avoid the exclusivity provision of the act. Here, the Plaintiff alleged that the decedent suffered from diabetes and high blood pressure. However, she did not suggest that either of those conditions were caused by his work at the meat packing plant. While she pled facts supporting misrepresentation, she failed to allege Tyson’s wrongful conduct aggravated a pre-existing work related injury. Thus, her misrepresentation claims do not fall within the narrow exception to the act’s exclusivity provision. The Court therefore dismissed the Plaintiff’s Complaint with prejudice and granted Tyson’s Motion to Dismiss.
