Pandemic protection

Editor’s note: This article is for general educational purposes only and does not constitute legal advice.

A Freedom of Information Act request filed by The Washington Post revealed since April 2020, employees filed more than 7,000 complaints with the Occupational Safety and Health Administration alleging employees were not properly protected from exposure to COVID-19 while at work. The complaints reveal COVID-19-related safety dissatisfaction is present in an array of workplaces including but not limited to hospitals, airlines, call centers, grocery stores, spas, shipping centers and, yes, roofing companies.

A multitude of employee concerns involve mask and glove shortages, compulsory work with people who appear sick and compulsory work in cramped areas where social distancing is not possible. Collectively, the complaints depict employee frustration when dealing with employers that, in their view, were unprepared for the pandemic and unconcerned with worker safety.

The lawsuits

Despite the high number of complaints filed, OSHA has been relatively conservative in its enforcement efforts. Perhaps in response to this, a growing number of private lawsuits and Department of Labor complaints have been levied against employers by a disgruntled workforce.

These lawsuits allege the following:

• Wrongful termination
• Unpaid wages
• Discrimination (such as age) as a result of layoffs and furloughs
• Personal injury based on an employer’s failure to properly protect employees from COVID-19 while at work

Many of the wrongful termination claims cite obeying stay-at-home orders or taking medical leave as the underlying reason for termination. Meanwhile, others allege termination was in retaliation for an employee bringing safety concerns to the attention of OSHA or his or her employer.

Some groups have sought to hold public departments accountable. For example, the International Association of Fire Fighters filed a state lawsuit in New Jersey alleging 65 members of the Atlantic City Fire Department were exposed to COVID-19 because of the department’s inadequate COVID-19 safety precautions, which ultimately led to six positive cases among the department’s ranks.

According to the complaint, firefighters who came into contact with other department members who tested positive for COVID-19 were directed to return to work as long as they tested negative instead of being ordered to undergo a 14-day quarantine, which had been recommended by OSHA and the Centers for Disease Control and Prevention. The association alleges the department’s demands violated the guidance handed down by state and federal health authorities.

Similarly, the state of Alabama elected to file a lawsuit based on a theory of public nuisance. At least three casinos in Alabama have been sued for public nuisance based on their decision to remain open for business amidst the global pandemic. The state asserts the casino owners along with certain elected officials have flagrantly violated Alabama laws, subsequently threatening the health, safety and overall well-being of the surrounding communities.

Although many personal injury lawsuits based on a failure to protect employees from COVID-19 are ongoing or have yet to be filed, some trends have emerged. First, businesses deemed nonessential could face liability from employees who were required to physically attend work and ultimately contracted COVID-19 as a result, especially if remote work could have been reasonably accommodated by the employer. Second, businesses deemed essential could face liability if the employers failed to provide adequate engineering and administrative safeguards to their employees, such as providing proper personal protective equipment and ensuring social distancing.

Legislation

Currently, proposed legislation may provide refuge for employers facing liability stemming from employee exposure to COVID-19. In July, Senate Republicans introduced a second, broad-sweeping coronavirus relief package. Among the bill’s provisions is a demand for a legal liability shield for businesses and other entities under the Safe to Work Act (S. 4317). The provision is intended to provide a degree of immunity to businesses, schools, health care providers and related entities from litigation concerning COVID-19. An underlying goal of the legal liability shield is to encourage businesses to reopen during the pandemic by limiting potential liability from individuals who may contract the coronavirus. The Safe to Work Act liability shield would retroactively begin in December 2019 and apply for a five-year period.

Although the liability shield would not bar all COVID-19-related claims, the stringent procedural requirements to pursue a claim pose significant obstacles to potential plaintiffs. In this vein, the act essentially bars all general negligence claims and requires a plaintiff to prove gross negligence on the part of the employer by providing clear, convincing evidence the employer acted in reckless disregard of its legal duties. The plaintiff also must show the employer’s actions caused the exposure to COVID-19 and the exposure caused the plaintiff’s injuries. These procedural challenges together with a provision that allows monetary penalties for pursuing claims that are later deemed meritless will likely present roadblocks to initiating and prevailing on lawsuits against employers for exposure to or injury from COVID-19 in the workplace.

At press time, it is unclear whether Congress will pass some version of the Safe to Work Act and the associated larger stimulus package. However, many states have passed laws limiting COVID-19 liability: Alabama, Arkansas, Georgia, Iowa, Kansas, Louisiana, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming. And the following states have proposed some form of a legal liability shield but have yet to sign anything into law: Florida, Illinois, Massachusetts, Michigan, New Jersey, New York and South Carolina.

This begs a question: Without a legal liability shield, should you be worried about your company being sued if a customer or employee becomes sick? The answer depends on the context. The law commands a person or business act as a reasonable person or business would under similar circumstances. Furthermore, “reasonableness” does not require one to be extraordinary in preparation—only reasonable. However, falling below the standard of care or caution expected from an ordinary reasonable person or business could leave you vulnerable. How, then, can you shield yourself and your business from liability relating to the coronavirus?

Forming a shield

First, recognize legal developments surrounding COVID-19 are rapidly changing. Therefore, understanding evolving regulatory requirements, industry best practices and litigation trends is key to maintaining the proper standard of care. You should be familiar with and adhere to OSHA, CDC, and state and local guidelines pertaining to COVID-19.

Your company COVID-19 prevention plan and policies that document what preventive measures have been taken should be in writing and updated as necessary in your employee and safety manuals. All employees should be trained on the prevention plan as well as any new workplace policies created as a result of COVID-19.

You also should implement engineering and administrative controls that are reasonably calculated to keep employees and customers safe. In addition, be sure to respond promptly to any employee complaints about COVID-19, carefully documenting employees’ complaints as well as your company’s responses. Finally, contractual provisions that would prevent legal liability arising from the unintentional spread of COVID-19, such as disclaimers, waivers and releases, could provide added protection.

Ultimately, if you follow OSHA and CDC guidelines and update your policies, manuals and contracts to address COVID-19 concerns, you can protect your company from COVID-19-related liability with or without government action to create a legal liability shield.

Trent Cotney is CEO of Cotney Construction Law LLP, Tampa, Fla., and NRCA’s legal counsel, and Casey Verville is an associate attorney for Cotney Construction Law in Portland, Ore.

Did you know?

NRCA members can find examples of legal provisions through NRCA’s Legal Resource Center at nrca.net/legal.