Employer Protections And The Jones Act
Ever since businesses began to discuss reopening earlier in the spring, they have been worried about the possibility of lawsuits if their employees were exposed to COVID-19 on the job. Congress is considering whether to build temporary employer protections, and how much, into the next round of coronavirus relief legislation. The issue involves a difficult balancing act: calculating risks to individuals versus the more widespread risks to society and individuals alike from prolonged unemployment.
Some states and employers have already acted. Alabama, North Carolina, Oklahoma and Utah have issued executive orders or passed laws to give businesses protections if their workers or customers get the coronavirus.
Some businesses, on reopening, have had employees sign waivers or pledges not to sue if they were exposed to the coronavirus on the jobs. These measures and pledges usually stipulate that employers will continue to take all precautions recommended by the CDC and to follow best practices, including sterilizing surfaces, mandating mask-wearing, and practicing or requiring social distancing.
For maritime employers, the Jones Act adds another wrinkle. As wards of the court, Jones Act employees enjoy protections and remedies not available to shoreside employees. Among these are maintenance and cure, the obligation of a Jones Act employer to pay certain benefits for an injury or disease contracted aboard a vessel regardless of fault. Jones Act plaintiffs also enjoy a relaxed standard of causation in tort actions. Shoreside employees must show that an employer’s actions were the “proximate cause” of any alleged injury, while Jones Act mariners only have to show that an employer’s actions or omissions contributed in some way.
In May, a COVID-19-related case was filed against a maritime employer in the Eastern District of Louisiana titled Kathy Norwood v. Rodi Marine LLC, et al, it involves the claims of the widow of a seaman on an offshore vessels whose captain went ashore in New Orleans and returned to his vessel, after which he fell ill with what was later diagnosed as COVID-19. The seaman later contracted the virus, from which he died at home. The plaintiff is alleging unseaworthiness of the vessel, due to contamination by the virus, and negligence of the employer under the Jones Act for failing to provide a safe place to work.
However this case plays out, there are long-established Jones Act precedents for dealing with infectious diseases, among other conditions aboard vessels. “There’s been no explosion of Jones Act COVID cases so far,” said maritime attorney Paul Sterbcow, managing member of Lewis, Kullman, Sterbcow & Abramson, LLC.
If Congress does include temporary employer protections in any pending virus relief bills, it could include Jones Act employers among others with language such as “notwithstanding any other provisions of law,” according to maritime attorney Marc Hebert, a New Orleans maritime attorney and partner in Jones Walker’s Corporate Practice Group.
Our industry can be rightly proud of the safety measures it has embraced. As we noted recently in this space, it is impossible to completely sequester ourselves from the larger society. Nevertheless, we have in many ways set an example for other industries of how to operate safely and to integrate measures to fight the spread of COVID-19 while continuing to deliver essential services. It’s an important example as the rest of society struggles to balance the need to keep individuals safe with the need to keep businesses viable.
