One question that employers have been asking since the onset of the pandemic is whether they could be sued by employees who get sick as a result of being exposed to an infected coworker. Plaintiffs’ and defendants’ lawyers have generally agreed that such claims would be difficult to win. In addition to the difficulty of proving that an employee was infected at work and not outside of work, such claims are likely to be barred under the workers’ compensation laws of most states, except in cases of an employee’s death where the plaintiff’s estate would have an opportunity to show that the employer was grossly negligent.
However, as we reported back in July, some employees have filed public nuisance claims asking for injunctive relief. While an Illinois state court partially granted a plaintiff’s request for a preliminary injunction (but not damages) against two McDonald’s franchises due to their alleged failure to implement adequate safety guidelines, federal courts have been less willing to entertain such claims. Last week, a federal court in New York dismissed a nuisance claim that had been filed against Amazon. Relying on the “primary-jurisdiction” doctrine that seeks to maintain a balance between the roles of courts and administrative agencies, the court found that OSHA was better suited than the court to assess Amazon’s COVID-19 safety measures.
The decision also addressed recent criticism that OSHA has “abdicated” its responsibilities because it has not enacted a standard specific to COVID-19, citing a recent D.C. Circuit decision that the agency had “reasonably determined” that a specific standard was not necessary at this time. The district court also cited OSHA’s recent announcement that it had cited 144 establishments for violations relating to coronavirus, with penalties totaling $2,025,431. While the great majority of the establishments have been health care, nursing home, or meat processing operations, these statistics do not account for many employers which have received a “Notice of Alleged Workplace Hazards.” Those notices are often issued when OSHA has received a complaint but does not have sufficient resources to conduct an inspection. In the notices, OSHA ask employers to immediately investigate the alleged conditions, make any necessary corrections, and report back to OSHA on the results of the investigation including any corrective actions taken. Employers who are able to demonstrate that they already had, or have developed, a protocol for protecting their employees from infection will generally be spared an inspection or any citations (unless OSHA receives subsequent complaints).
For those employers who have not yet developed protocols for their workplace, be aware that there is no such thing as a “model” protocol. Measures for protecting workers from exposure — which can include engineering and administrative controls, safe work practices, and personal protective equipment from exposure to COVID — should depend on the type of work being performed and exposure risk in your particular workplace.
