Lawsuit claims Tracy, CA workplace forced COVID-19-positive employees to work

A lawsuit filed in Alameda County Superior Court claims a Safeway distribution center in Tracy, CA mandated that workers with COVID-19 work 16 hours per day, six days per week.

“In March 2020, workers at the Distribution Center began to fall ill with COVID-19. These employees were mandated to continue working not only regular shifts, but also additional shifts (6 days per week, rather than 4 or 5) with longer hours (16 hours per day),” the complaint states.

The wrongful death lawsuit contends that a Turlock resident died because he contracted COVID-19 as the result of the negligence of the defendants, Safeway Inc., Albertsons Companies, Inc. and does 1 through 100, inclusive. The complaint states that the decedent tested positive for COVID-19 after taking a test on April 1, 2020, was admitted to the hospital on April 4, was transferred to ICU on April 5, intubated and placed in a medically induced coma, and died on April 13.

The complaint notes that the World Health Organization declared COVID-19 “a public health emergency of international concern” on January 30, California Governor Gavin Newsom declared a state of emergency regarding COVID-19 on March 4 and the U.S. Department of Labor Occupational Safety and Health Administration released “Guidance on Preparing Workplaces for COVID-19” on March 9.

“Guidance” stated that COVID-19 had “the potential to cause extensive outbreaks” in workplaces and provided guidance to employers on how to reduce employee exposure to COVID-19, including:

• Develop an infectious disease preparedness and response plan

• Prepare to implement basic infection prevention measures

• Develop policies and procedures for prompt identification and isolation of sick people, if appropriate

• Develop, implement and communicate about workplace flexibilities and protections

• Implement workplace controls

• Follow existing OSHA standards

The complaint notes that U.S. Food and Drug Administration (FDA) guidance issued on March 17 directly addressed workers in distribution facilities, stating, “if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace… the primary responsibility in this instance is to take appropriate actions to protect other workers and people who might have come in contact with the ill employee.”

The defendants posted a sign at the distribution center on March 20 stating that masks and gloves were not recommended for use by distribution center employees, “contrary to the guidance and advice issued by federal and state authorities,” according to the complaint.

The complaint states that by mid-March 2020, distribution center employees, including the decedent, started complaining to supervisors about dangerous working conditions and were met with threats of retaliation which could lead to termination.

The complaint claims that it wasn’t until after the death of the decedent that the defendants started to institute additional safety measures at the distribution center, but that even these changes were “modest.” The complaint claims the only changes the distribution center made were rearranging break rooms and placing a single hand sanitizer stand, often left empty for hours, for a department with over 100 employees working at any given time.

The decedent, according to the complaint, was “a happily married 52-year-old man, devoted to his wife… and their five children.” The man worked for 22 years in the distribution center as a material handler in the produce department, according to the complaint.

Causes of action

The complaint seeks to recover damages based on multiple causes of action, including:

Negligence: The complaint argues that the defendants had a duty to make sure their distribution center was run in a way that safeguards the safety and well-being of their employees.

The complaint argues the defendants breached this duty of care by:

• Failing to comply with federal and state OSHA guidelines

• Failing to comply with FDA guidelines

• Telling employees masks and gloves weren’t necessary or even potentially helpful

• Failing to implement an infection disease preparedness and response plan

• Failing to develop and implement policies and procedures designed to prevent an outbreak

• Failing to maintain housekeeping practices

• Failing to implement, promote and enforce social distancing

• Failing to warn employees that other employees were experiencing COVID-19 symptoms and may have been infected at work

• Failing to periodically inspect the distribution center

• Failing to develop procedures to identify and isolate sick workers

• Failing to train employees to implement and follow COVID-19 mitigation procedures

• Failing to train and educate employees on COVID-19

• Failing to respond appropriately to the complaints of employees

• Failing to develop and maintain an adequate prophylactic infrastructure after the COVID-19 outbreak happened

• Threatening or retaliating against employees because of non-attendance during the outbreak or their complaints about working conditions

The complaint alleges that the decedent died as a direct result of the defendants’ negligence.

Gross negligence: California Civil Jury Instructions No. 425 defines gross negligence as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or by failing to act.”

The complaint argues that the defendants were not just negligent, they were grossly negligent, suggesting the defendants did absolutely nothing to slow or stop the spread of COVID-19 in their workplace, demonstrating a lack of any care.

Violations of Federal Occupational Safety and Health Act of 1970: The complaint states that this act mandates that employers:

• Provide employees a place of employment free from recognized hazards that are causing or likely to cause serious physical harm or death to the employees

• Shall comply with safety standards established by the act

The complaint argues that the defendants failed to provide their employees with a safe workplace by failing to do anything about the spread of COVID-19 in the distribution center.

Violations of the California Occupational Safety and Health Act of 1973: The complaint states that this act mandates that employers:

• Establish, implement and maintain an effective injury and illness prevention program

• Include a system ensuring employees comply with safe and healthy work practices

• Include a system for communicating with employees about occupational safety and health

• Include a system to identify and evaluate workplace hazards

• Include methods and procedures to correct unsafe or unhealthy conditions and work practices

• Include a system to instruct employees in safe and healthy work practices

• Correct unsafe and unhealthy conditions and work practices in a timely manner

The complaint argues the defendants violated this act by failing to do anything about the spread of COVID-19 in the distribution center.

Fraudulent concealment of injury: The complaint argues that the defendants committed fraudulent concealment of injury by hiding from distribution employees the fact that other employees had COVID-19 symptoms and may have been infected at work.

Wrongful death: The complaint argues the decedent died “as a direct, legal, and proximate result of the negligence, gross negligence, carelessness, recklessness, and wrongdoing” of the defendants.

About the author

Jeffrey Nadrich is the managing partner of Nadrich & Cohen, LLP, a Tracy, California personal injury law firm which represents the families of COVID-19 workplace death victims.