Reopening for Business During a Pandemic: Are Employers Exposed to Liability?

back_to_work_coronavirusAccording to the general duty clause of the federal Occupational Safety and Health Acts, employers must provide their employees “a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The Occupational Safety and Health Administration (OSHA) can cite employers for violating the general duty clause if there is a recognized hazard, and they do not take reasonable steps to prevent or abate it. However, OSHA citations can only be based on standards, regulations, or the general duty clause.

Employers Should Conduct Hazard Assessments

The U.S. Chamber of Commerce recently published a letter in which it outlined the criteria for what a safe workplace should look like when businesses reopen. A safe workplace requires the use of personal protective equipment (PPE) such as masks, respirators, and physical barriers, and employers can face lawsuits for a limited supply or lack of training of PPE.  However, it will be difficult to balance this requirement with the fact that it would be nearly impossible for every employer to make PPE available once the country reopens due to a lack of supplies, and that the federal government needs to clarify the scope of liability for the provision (or inability to provide due to scarcity) of PPE.  The Chamber of Commerce is calling for safe harbor legislation to address this concern.

Importantly, OSHA looks to the Centers for Disease Control (CDC) as the authority when issuing coronavirus-related citations, and OSHA will determine whether the employer’s industry knows that exposure to infected individuals in the workplace is a hazard.  If so, the agency would expect the employer to take reasonable measures to protect the employees and, if it does not take such action, the employer could be subject to citation.

As such, employers should conduct a “hazard assessment” for potential exposures and develop an action plan that includes hazard identification, hazard prevention procedures, employee training, medical monitoring surveillance, and recordkeeping.  If employers are aware of any potential threat of coronavirus to their employees or customers, they should immediately report it to OSHA.

Other Potential Problems

In addition to OSHA-related violations, employers are already facing litigation regarding employment practices related to the pandemic. This includes class actions in the transportation industry regarding employees’ scope of work and travel destinations. Employers also could face liability related to wage-and-hour issues, leave policy, travel restrictions, telework protocols, worker’s compensation, negligence, strict liability, discrimination, retaliation, or whistleblower activity.

Liability for the spread of disease is often challenging to prove because diseases are often spread before symptoms emerging and thus, infected individuals may be unaware that they are spreading a disease. During pandemics such as the Covid-19, however, there is increasingly sophisticated technology to track the spread of disease and increased public awareness of the risks and appropriate preventative measures. With the State Department’s highest level warning, employers need to ensure they do not take unreasonable risks with their employees or the public. In the event employees prove they contracted the virus through exposure at work, employees may also be entitled to receive worker’s compensation, temporary disability benefits in lieu of wages, reasonable and necessary medical treatment, or an award for any resulting permanent disability.

In March 2020, the Michigan Workers’ Disability Compensation Agency issued Emergency Rules, under which first responder employees are eligible for workers’ compensation benefits if they suffer a personal injury that arises out of and in the course of employment if the first response employee is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure, receives a COVID-19 diagnosis from a physician, receives a presumptive positive COVID-19 test, or receives a laboratory-confirmed COVID-19 diagnosis. First response employees covered under this provision include those working in health facilities or agencies, health care practitioners and professionals, paramedics, police officers, and firefighters.

Are Waivers Enforceable?

It depends. Although general liability waivers are routine and well-known, it is unclear whether a Covid-19 waiver intended to relieve an employer of liability for exposure claims would be enforceable. This is due, in part, to the practical reality that no court in the country has yet analyzed such a waiver in this context. Further, any waiver would need to be narrowly tailored because some employee rights cannot be waived under any circumstances (e.g., the Civil Rights Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Michigan Worker’s Disability Compensation Act).  For now, basic legal principles should guide any such analysis, and employers seeking to execute liability waivers should consult with experienced counsel.

We Are Available to Help During the Coronavirus Emergency

If you have questions about employment issues resulting from the COVID-19 pandemic, the employment law attorneys at Kreis Enderle are here to counsel you regarding your rights. We are working remotely during the crisis and can conference with you by telephone or video.  To discuss your situation, please contact Jesse Young at jyoung@kehb.com or (269) 321-2311.

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