Workers’ Comp Claim for COVID Death Appealed, Court to Decide Next Steps
Recall if you can the uncertainty, fear and anxiety of those first few months of the COVID-19 pandemic. The very idea of shutting down operations seemed unfathomable — but for many, that was the “new norm” instated to protect workers and customers from the rapidly spreading virus.
With that fear and uncertainty, so too came trial and error. Case in point, South Dakota’s slaughterhouse and pork packaging plant Smithfield Foods remained in operation.
This choice led to one of the biggest outbreaks of COVID-19 in the U.S. in April 2020. More than 500 employees contracted the virus. Four died.
On April 19, 2020, long-time employee Craig Franken succumbed to the disease. His wife, Karen, sought workers’ compensation benefits for his untimely and work-related death.
In the meantime, OSHA fined Smithfield Foods in 2020 for failing to “protect employees from exposure to the coronavirus.” The CDC also fined the company for $13,494.
Despite OSHA’s fine, Karen Franken’s case was dismissed due to a June 2021 South Dakota Department of Labor and Regulation law that “determined employees could not sue for workers’ compensation when related to COVID-19, unless it was an intention exposure ‘with the intent to transmit COVID-19.’ ”
Essentially, the law removes employers’ liability for exposing workers to the virus unless the employer was actively trying to expose people on purpose. Under that definition, Smithfield Foods was able to dismiss her claim.
Twenty-eight states have passed laws regarding liability protection since the onset of the virus. Of those, 15 specifically mention workers’ compensation. South Dakota’s law is not one of them.
Karen Franken appealed her claim.
Her lawyer argued that she had not filed a wrongful death claim, but instead, Karen had brought forth a claim asking for workers’ compensation benefits — two very different suits. Because of this, the lawyer argued, it was unjust for the South Dakota DOL to dismiss the claim in the first place.
Currently, Smithfield Food is relying on the argument that “There has been no determination that Craig Franken’s work at Smithfield was the cause of his illness and death.”
Scorecard: This case is being appealed.
Takeaway: We’re still in the thick of it when it comes to COVID-related litigation, from liability to workers’ comp. Businesses are keen to watch what happens in court and maintain safe protocols for workers to avoid any future unease. &