Can covid-19 be an actual workplace liability issue? Well in some cases it is and three cases show that is possible. As reported by Thomson Coburn LLP in August, 2020, three cases expose the liability risk businesses have with Covid-19:

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.”

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.”

NEW YORK: Amazon faces charges of public nuisance because of the alleged spread of COVID-19 from the workplace conditions,

With these cases the question comes up for business: what can a business do to best help keep their employees safe and to what extent is a business liable if one of their employees contract COVID-19?

The Thomson Coburn LLP article lists 5 areas to consider to answer the above questions: OSHA requirements, worker’s compensation, tort claims, relief from liability and prevention.

With the OSHA requirement, one key point made in the article is this “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.”

The key point we want to point is out is that, according to Thomson Coburn, OSHA “require that employers determine whether a case of COVID-19 was contracted in the workplace.” That can be a challenging prospect if a given business does not have a system in place to see who on their team has Covid-19 in the first place.

With worker’s compensation, “if the employee was injured or became ill as a result of a workplace exposure, damages are automatic.” The key here is if the employee contracted Covid-19 while on the job. That can be hard to determine and yet some states, such as California and others, have put in place rebuttable presumption that an employee who has been working contracted COVID-19 while at the workplace.

In the case of tort claims against a company for a public nuisance, “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.”. The key here is, was the business in question following CDC guidelines and its own policies to keep employees safe?

For relief from liability, some states have passed laws to protect employers from claims brought by customers or by employees. The laws require the plaintiff to prove that the business was either grossly negligent or intentionally negligent such that they contracted Covid-19. The catch here is that there is an assumption that the business in question is following safe protocols, many of which are outlined in the paragraphs and resources earlier in this article.

Finally prevention is seen as a key part of this since it shows a good faith and well intentioned move by the employer to keep their employees safe by limiting as much as possible their exposure to Coronoavirus. A businesses prevention plan should follow CDC guidelines, since these are the standard guidelines nearly all others are based on. In addition, the article notes a key point for prevention of liability and prevention of inadvertent harm to employees, “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. “

The common thread running through all of this is that a business needs to have a plan, needs to take precautions. If you business does not have a plan or precautions, we’d recommend a few things as a first step to limit your liability and keep your employees as safe you can:

(1) Use a daily Covid-19 employee screening tool such as our C-19 Registration tool. Ask employees to use it every day so that you get a daily picture of who is in, who is healthy, who is out sick with Coronavirus. TheC-19 Registration tool can be accessed on a smart phone, tablet or computer. Employees should use it before they come into work, as it will tell them if they may have Coronavirus. It also lets the employer know who took the test, who may be out, who may be ill in order to keep the workplace safe for all the employees.
(2) Make wearing a mask at work mandatory
(3) Remind employees to wash their hands frequently
(4) Practice Social Distancing at work
(5) Stay home if you feel sick