Can employers be liable for COVID-19 cases?

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Legal claims based upon possible COVID-19 exposure in the workplace are increasingly being asserted. The family of a poultry plant worker who died from COVID-19 has sued Pilgrim’s Pride Corporation claiming the worker contracted the virus at work. In Nevada, a Culinary Worker’s local has filed a lawsuit alleging that three resorts have failed to adequately protect employees against contracting COVID-19 in the workplace.

What are employers’ obligations with respect to COVID-19, and to what extent may they be liable when their employees contract COVID-19?

Occupational Safety and Health Administration

Some OSHA reporting requirements apply to employee COVID-19 cases. Currently, OSHA does not have a specific standard dealing with COVID-19 in the workplace. Congress may, but hasn’t yet, required OSHA to issue an emergency standard. OSHA does not have a specific standard dealing with COVID-19, but it requires that employers determine whether a case of COVID-19 was contracted in the workplace. If that occurred, and the employer was obligated to record workplace injuries and illnesses, then the employer must record the COVID-19 case on their Form 300 if the other requirements for recording an illness or injury are met. Also, if the employee were to become hospitalized or die from a case of COVID-19 in the workplace, the employer would be required to report that.

Of course, it is often difficult to determine when COVID-19 was contracted. In making that determination, OSHA requires that the employer investigate, and consider, among other things, the employee’s statement as to how he believes he contracted COVID-19. Another consideration is whether the employee deals with the general public in his or her work; this is viewed as suggesting that the illness was work-related. The employer should also take into account any other cases in the workplace or whether the employee had close, continuous contact with another employee that had been diagnosed with COVID-19. Considering these factors, the employer’s best defense is to limit COVID-19 exposure in the workplace.

Illinois and Missouri are subject to OSHA, but a number of states, including Virginia, have opted out from OSHA coverage. Virginia recently issued its own workplace standard, the first in the nation, dealing with COVID-19 specifically. While OSHA does not have a COVID standard, it has used existing non-COVID centric standards to issue citations and fines. For example, it has fined a number of employees for violating standards dealing with respirators following a rash of COVID cases at their sites of employment. OSHA has a number of businesses (hospital, nursing homes, funeral homes, etc.) that they are carefully monitoring for COVID-related issues.

Worker’s compensation

Claims for worker’s compensation are handled by the states. Normally employees must prove that they were injured or became ill during the course and scope of their employment. Some states are considering or have taken steps to create a rebuttable presumption that an employee who has been working contracted COVID-19 while at the workplace. For example, Illinois proposed such a presumption, but that effort has been dropped. California’s governor, by executive order, created such a presumption for certain California-based employees for the period March 19, 2020 through early July 2020. Missouri has not taken any such steps to create a presumption.

Under worker’s compensation law, if the employee was injured or became ill as a result of a workplace exposure, damages are automatic, but they are capped by statute.

Tort claims

As in the Pilgrim’s Pride case, claims are often in court, in the hope for a jury damages award without a limit. Normally, to prevail in a tort claim, an employee would have to show that the employer owed the employee a duty and breached that duty and, as a result, the employee was injured or became ill.

Relief from liability

Various state and federal laws have been proposed to protect employers who reopen from claims brought by either customers or employees. One federal proposal would remove such claims to federal court. Another approach would be to require greater proof of fault in these cases; North Carolina followed that route by requiring that plaintiffs prove that the employer’s actions were either grossly negligent or intentional.

Waivers

Questions have been raised regarding whether to have employees sign liability waivers. These would appear to be more trouble than they are worth. First, OSHA will not accept that an employee can waive the employer’s obligation to provide a safe workplace. Second, the Worker’s Compensation Commission will rule similarly. Third, unions will contend that such waivers constitute unlawful direct dealing. Fourth, such waivers might result in a non-union workplace becoming unionized. Fifth, depending on the facts, the EEOC and state agencies might have issues. For example, if the waiver was only required from people over 60, an age claim could arise.

Prevention

To best help prevent claims, employers should familiarize themselves with guidance from the Centers for Disease Control regarding limiting the spread of COVID-19, and try as best as possible to follow that guidance. While OSHA has not issued binding guidance on the issue of COVID-19, they have issued over 100 “Tips of the Day” as to how to limit the spread of COVID-19 in the workplace, and employers should carefully consider those tips.

It can also be helpful to have employees certify every day that they have not tested positive for COVID-19, that they have not knowingly been exposed to someone else with COVID-19, that they do not have a temperature above 100.4° F. or have other symptoms associated with COVID-19. Many employers are also mandating the wearing of masks in the workplace, implementing and enforcing social distancing, and implementing procedures for contract tracing.

Employers can also post the steps they have taken to limit the spread of COVID-19 in the workplace or in the business—an action required under the North Carolina law.

As with everything else COVID-19 related, this issue is continuing to evolve and change.

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