This article has been updated as of August 3, 2020.
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. In Illinois and California, employees have sued McDonald’s for public nuisance because of the alleged spread of COVID-19 from the workplace conditions of the restaurant. Amazon faced similar public nuisance claims for its warehouses in New York.
What are employers’ obligations with respect to COVID-19, and to what extent may they be liable when their employees contract COVID-19?
Currently, OSHA does not have a specific standard dealing with COVID-19 in the workplace. Congress may, but has not yet, required OSHA to issue an emergency standard.
While OSHA does not have a specific standard dealing with COVID-19, it does require 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 satisfied. 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 as well.
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. States with their own plans (e.g., Nevada) have also issued citations using general standards.
On July 31, 2020, OSHA issued guidance stating that employers may require employees to wear commonly available cloth or medical masks, and that doing so does not expose employees to carbon dioxide or low oxygen risks. OSHA was responding to a Facebook post that went viral earlier this summer assuming that masks posed such risk and/or that requiring employees to wear masks ran afoul of other OSHA standards.
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.
As in the Pilgrim’s Pride case, claims are often filed in court, in the hope a jury will award damages 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 (or their family member / roommate / partner) was injured or became ill. To prevail on a public nuisance claim, an employee would have to show a substantial and unreasonable interference with public health and actual injury resulting from that interference. The courts to date have focused on whether the employer is following CDC guidelines, and is following its own policies.
Various state and federal laws have been proposed or enacted to protect employers who reopen from claims brought by either customers or employees. For example, at the state level, North Carolina passed legislation requiring that plaintiffs prove that the employer’s actions were either grossly negligent or intentional. Similarly, Utah and Oklahoma have enacted wide-ranging legislation that provide protections for employers from claims by customers or employees, assuming that certain protocols were followed. Other states have enacted legislation that is targeted to specific industries such as health care or restaurants.
At the federal level, Republican senators have proposed what is now being called the “Safe To Work Act” which is part of their latest stimulus bill. If enacted, this proposal would essentially eliminate state negligence actions for coronavirus-related matters for the period December 2019 to October 2024 if they are less employer-friendly than the federal statute. Plaintiffs would have to show by “clear and convincing evidence” that a business committed a “conscious, voluntary act or omission in reckless disregard” of their legal duties. In addition, plaintiffs would have to prove the company’s action caused exposure to the virus and the virus caused their injuries. The proposal would also require that plaintiffs meet detailed pleading requirements.
The proposed law would also give employers safe harbor protections from a variety of federal employment laws, including OSHA. This safe harbor provision would require a showing that the employer was “relying on and generally following applicable government standards and guidance.” This safe harbor protection would also make it easier for employers to close or layoff employees without triggering obligations under the Worker Adjustment and Retraining Notification (WARN) Act.
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 attempts 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.
Tim Sarsfield is a member of Thompson Coburn’s Labor & Employment practice group.
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