Summary

Employers in the United States (and around the world) are trying to determine how to operate their businesses safely due to the health risks posed by COVID-19. Employers have many questions surrounding how to implement the best cleaning and sanitization practices, and what happens if an employee or invitee transmits COVID-19 therein or believes they contracted the illness at work or while patronizing the business. As not all employers can clean their workspaces themselves, many employers are asking what risks are associated with hiring a third-party cleaning service or independent contractor to clean their facilities. For a detailed discussion on employer liability generally in the midst of COVID-19 please click here. Below provides an assessment of the specific risks associated with hiring a third-party cleaning service provider.

What standard of care do I owe my employees or other visitors to the property?  

Employers have a duty to their employees, customers, and third parties to provide a safe environment. This duty requires employers to be aware of what is happening within their premises and to prevent and address therein any hazardous conditions. The best way for an employer to limit exposure to COVID-19 related litigation is to identify who is on its premises and what standard of care is owed. How employers need to respond is predicated on whether the person is an employee or invitee (i.e., a customer, guest or third party contractor).

• For invitees, implement and closely adhere to the Centers for Disease Control and Prevention (“CDC”), state and local health authority guidelines, and determine your obligation to report a non-employee COVID-19 case that arises on your premises.
• For employees, employers, in addition to adhering to CDC, state, and local health authority guidelines, must also adhere to guidelines and regulations released by the Occupational Safety and Health Administration (“OSHA”).
• Although these guidelines are constantly evolving, employers can access general and industry specific CDC guidelines here and here, and the applicable OSHA regulations here.
• Furthermore, employees are owed confidentiality and should not directly be identified in any communication shared with other employees about a suspected or confirmed COVID-19 case.

What is the burden of proof for an employee or estate filing a lawsuit alleging contraction of COVID-19 while working in or patronizing my business?

Normally, an employee or the affected person’s estate will have to prove contraction of the illness while on the premises—a high bar during a global pandemic. However, many states are passing regulations (i.e. executive orders) safeguarding businesses from civil liability if they adhere to CDC guidelines and other provisions outlined in those executive orders. Whereas, other states, have passed executive orders establishing a presumption that the employee contracted COVID-19 while on the job. Therefore, employers should contact legal counsel to determine what laws apply in the state or states in which their business operates. 

What is my responsibility, or potential liability, to my employees and customers if I hire a third-party vendor or independent contractor to clean my business premises following those premises’ potential exposure to the COVID-19 virus? 

Employers carry the duty to protect their employees and invitees. Any third-party cleaning service provider or independent contractor hired should adhere to the OSHA and CDC guidelines for sanitizing and cleaning a business during this pandemic. If a third-party service provider or independent contractor cannot assist your business in complying with OSHA regulations and CDC guidelines (i.e. using the wrong grade of disinfectants), that is not the right company to conduct the cleaning services. You may be able to argue, should litigation over exposure to COVID-19 ensue, that the cleaning service provider was negligent, but your business has a duty to its employees and invitees to keep the premises reasonably safe. The third-parties negligence will not absolve your company of the duty to ensure that the cleaning services were properly executed and are compliant with the practices suggested to limit the spread of COVID-19.

Some practical tips for mitigating liability would involve asking to be an additional insured on the contractor’s insurance policy relating to cleaning; requesting the contractor to detail exactly what they plan to do (including what PPE they plan to use) and to certify that it complies with applicable OSHA, CDC and state and local guidelines; draft a contract to enter into with the contractor that shifts any liability to the contractor; double check your own insurance coverage to determine whether you are covered if the disinfection is done by a third party service.

Another way to limit your exposure to liability is to keep an open dialogue going with your employees about how the company’s COVID-19 related policies and procedures are working. Encourage your employees to report violations or situations that might enhance exposure. This will allow your employees to feel invested in their own protection at work, but also keep the company abreast of any remedial measures that need to be taken to further ensure that your employees and customers are adequately protected from exposure on the premises, to the greatest extent possible.

What is my responsibility, or potential liability, to a third-party or independent contractor who I hire to clean my business premises following those premises’ potential exposure to the COVID-19 virus?

In the case of cleaning service providers, whether a third party or independent contractor, employers generally have a duty to provide a premise that is safe and free of hazardous conditions. If it is suspected or confirmed that COVID-19 is present within an employer’s premises, the cleaning service provider should be informed of the hazard so that they can take the necessary precautions to protect against and address the issue appropriately.

Keep in mind, however that, independent contractors, depending on who controls their work and how it is executed, may also need to be treated as employees by an employer, meaning that they too must be provided a workplace that is OSHA compliant. Workers who conduct cleaning tasks must be protected from exposure to hazardous chemicals used in these tasks. In these cases, the PPE (29 CFR 1910 Subpart I) and Hazard Communication (29 CFR 1910.1200) standards may apply.

As the standard of care develops, a business should look to applicable federal guidelines, including CDC and OSHA, and state and local guidelines to mitigate potential risk. An analysis of CDC and OSHA guidelines a business should consider if a person with a confirmed case of COVID-19 has been at its facility can be accessed here. 

Do OSHA or CDC guidelines apply when the cleaning and disinfecting work is being performed by a third-party vendor or other outside employee?

Yes, OSHA and CDC guidelines apply when cleaning and disinfecting services are being performed by a third-party vendor or other outside employee. The duty to implement the OSHA and CDC guidelines falls on the employer. Therefore, employers should be requiring the implementation of OSHA and CDC compliant cleaning practices for their workplaces, whether conducted by outside employees or third parties. The third-party servicer, whom is also an employer, should be implementing the same practices for their workforce so that they are adequately protected while performing their duties on another employer’s premises.

Would hiring entirely independent cleaning contractors, with no employees of their own, permit a business to clean its premises without following OSHA cleaning guidelines?

No, hiring independent cleaning contractors would not permit an employer to clean its premises without following OSHA cleaning guidelines. Employers have a duty to their workforce and customers to maintain a safe environment and that duty does not dissipate because an independent contractor is hired to conduct the cleaning of the facility, even though that independent contractor may not have to follow OSHA guidelines to protect themselves from certain hazards while performing their services.