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Concerns for Employers in Reopening

As businesses begin to reopen nationwide and work to become economically viable again, they face emerging litigation trends.  One such trend involves lawsuits against employers for allegedly insufficient COVID-19 protocols and safety measures.  Plaintiffs contend that some businesses risk the health of not only their employees, but also the employees’ family members and the general public as well.  Such lawsuits are known as “derivative exposure claims”.

Three recent cases illuminate this “derivative exposure” risk for employers as they grapple with reopening during the COVID-19 pandemic.  In New York, Amazon employees alleged that working conditions put them and their family members at significant risk.  In that case, the Plaintiffs allege that a family member died from the “derivative exposure” to COVID-19 of an employee.  Similarly, there are 2 pending lawsuits against McDonald’s in Oakland, California and Illinois.  In the California case, the judge granted a temporary restraining order preventing the McDonald’s franchise owners from reopening until they complied with safety laws and paid sick leave laws.  These cases are funded to a certain extent by various social justice organizations and unions.

Employers normally enjoy immunity from lawsuits for damages due to workplace injuries or illnesses under the “exclusivity” rule for workers’ compensation.  In other words, with limited exceptions, employees are barred from suing their employers because they are limited to seeking redress for damages through the workers’ compensation system.  However, Plaintiff’s lawyers recently have been framing these cases as a “public nuisance” thereby taking them outside of the workers’ compensation system.  Further, the exclusivity rule may not apply in the first instance to family members or other third parties, such as housemates of employees who were exposed to COVID-19 at the workplace.  The outcome of the cases will vary as determined on a state-by-state basis under the subtle differences between workers’ compensation laws.

There are other cases pending in different jurisdictions under negligence and wrongful death theories.  Different states impose varying standards of care upon employers with respect to the duty to protect third parties from foreseeable risks, such as secondhand exposure to COVID-19.

For Ohio employers, there is some immunity from COVID-19 lawsuits depending on the industry and services.  Senate Bill 308 was passed on June 3, 2020 and provides immunity in certain instances for health care providers as well as service providers.  Please refer to our article on Senate Bill 308 found here.

What action steps or measures should employers take to mitigate the legal risk involved with “doing business” during a pandemic such as COVID-19?  Employers should review the federal guidelines recommended by the Occupational Safety and Health Administration (OSHA) and its recent “Guidance on Returning to Work”.  This recent guidance also contains a very helpful “Frequently Asked Questions” section with reference to applicable OSH Act provisions.  This guidance outlines specific principles that should be addressed.  For example, a hazard assessment should be performed for each job in the workplace.  Policies should be developed for hygiene, social distancing, the identification and isolation of sick employees, and returning to work after illness or documented exposure to COVID-19, among other policies.  Meaningful training on these policies as well as anti-retaliation training should be performed and documented.  Employees should be required to evaluate themselves for symptoms prior to coming to work.

Employers should also review the Center for Disease Control (CDC) recommendations.  Specifically, the CDC website contains an excellent review and recommendation for cloth facial coverings.  The CDC lists 5 criteria for “cloth face coverings” which can be found here.  Employees who decline to wear facial coverings without a medical reason or another protected class reason should not be permitted to work and may be subject to discipline.  In most instances, OSHA defers to CDC recommendations, as adapted by state and local health departments, in circumstances when employees test positive or exhibit COVID-19 symptoms, on the subject of returning to work.

While OSHA Guidelines and CDC Guidelines are not necessarily legally binding, compliance by employers with them will go a long way toward reducing potential liability for COVID-19 claims of both direct exposure and derivative exposure.  Employers should also take actions and develop policies that are consistent with the “best practices” in their industry.  Further, Documentation of training on health and safety policies is critical as well.  But most importantly, in times of crisis such as the COVID-19 pandemic, employers should exhibit and communicate care and concern about the health and welfare of their employees.  Please contact a member of our labor and employment section for further information or questions.

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