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By Sean K. Palmer
Associate General Counsel
SpaceIQ & Archibus + Serraview
The financial business impact of the novel coronavirus (COVID-19) is undeniable. Reports show that more than 100,000 U.S. small businesses have shuttered their doors for good, despite the $700 billion in stimulus funds from the federal government. Companies who have survived are anxiously working to get employees back to work as safely as possible.
Back-to-work initiatives beget an important question: If an employee returns to work, and contracts COVID-19 in the workplace, is the employer legally liable? The short answer is…it depends. The long answer is much more complicated.
Because COVID-19 is new there is no case law with regards to the virus that shows explicit employer liability if an employee becomes ill at the office. There is the argument that it is the same as getting the flu from a coworker. Would you sue your employer for that? Probably not. However, COVID-19 is not the flu, and employees expect their companies to do everything possible to protect them from this deadly disease.
According to the Occupational Safety and Health Act’s general duty clause, employers have a duty to “furnish to each of his 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.” To prove liability, employees must show their employer breached that duty and that the breach is the proximate cause of their illness. In layman’s terms, the employee must show that he/she became sick because of what the employer did or did not do.
One of the challenges to an employee trying to prove COVID-19 liability is meeting the “free from recognized hazards” portion of that clause. Mitigating the danger of an employee tripping on an edge of exposed carpet is easy; tack it down and the problem is then solved. Coronavirus, however, does not present itself so simply. Several studies show up to 80% of infected people are asymptomatic or exhibit mild symptoms. How does an employer have a duty to eradicate the “recognized hazards” of COVID-19 when it can’t see them?
A second issue is that proximate cause with respect to an airborne virus is very tricky. “Certainly, everything an employer can do to mitigate the risk to their employees increases the likelihood of defending a claim if someone contracts COVID-19 in the workplace,” said John Hutchins, a partner with BakerHostetler, a national law firm with 1,000 attorneys and 17 offices in the U.S. “It may be difficult for employees to hold their company liable for a coronavirus infection because they’d have to prove they contracted it in the office. That can be difficult in a pandemic. The more an employer does to reduce the chances that an employeeI could contract the disease in the office, the better argument it has to successfully argue that it’s just as likely that the employee contracted it at the grocery store.”
Hutchins believes employers should ask whether they really need to ask employees to come back. “An employer whose employees are productive when working from home should ask, “Why are we asking our employees to come back to work? I’m perfectly safe working at home and have 100% control over my own environment. If my employer wants me to come to an environment where I don’t have 100% control of my own health, they should have a clearly articulated reason
Covid-19, by definition, is novel. Thus, there are no easily identifiable standards or analogous case law on whether employers should or shouldn’t ask workers to return to the office, Hutchins said. Safety measures, such as pre-entry health screenings, social distancing, and one-way walkways, social distancing, mandatory mask policies, are key to reducing employer liability. More importantly, employers should carefully monitor employee health, immediately send anyone exhibiting COVID-19 home, and immediately begin contact tracing, when possible.
“At that point, it’s critical to not only send the impacted employee home, but also everyone he or she had contact with,” he added. “Communicate with all employees that the area in which the employee worked is being disinfected and anywhere they may have traveled in the office. Proactive response is the best way to mitigate liability. But, certainly, it’s no guarantee. Every situation is fact-specific. There are far too many variables to be able to advise any particular employer that they have done everything necessary to avoid potential liability.”
For employees with health conditions or special circumstances, employers should consider work-from-home options, that allow work to continue, without showing favoritism. Further, employers should consider how they can empower their employers to take control of their own willingness to take risks that are inherent with the coronavirus return-to-the-workplace quandary. “Employers should consider a policy where they say, “If you’re not comfortable with the health risks of returning to the office, then you don’t have to come,” Hutchins said.
Predicting employer liability, if a person contracts COVID-19 in the workplace, is impossible. There will be myriad factors unique to each claim and the courts must examine every one on a case-by-case basis. Hutchins believes litigation over these issues is likely because there will always be plaintiffs and plaintiffs’ lawyers. However, the burden of proof will rest on the plaintiffs to prove that the employer breached its duty, and as a proximate cause of that breach, the employee contracted the virus.
“The best we can say right now is if an employee contracts COVID-19 at work, their employer might be liable,” he said. “Each state will handle cases differently, with varying state laws impacting what proof required for placing blame. For instance, many states have comparative negligence statutes now, so a jury has to sort out how much of the blame rests with each party to the lawsuit. In a lawsuit alleging, “You forced me to come back to work and I got sick,” the variables that a jury would need to consider are almost limitless. It’s too early to know how all of this will shake out, which is why preventive measures in the workplace is a smarter option than scrambling to show, in hindsight, you did everything possible to protect your employees.”
Keep reading: COVID-19 and Employee Fear on Returning to the Workplace
About John Hutchins
John Hutchins is a veteran trial and technology lawyer with broad experience encompassing complex commercial litigation and trial work, privacy and data security matters, and compliance and strategic counseling on technology matters and transactions. While his nearly 30 years of litigation experience runs the gamut in subject matter — from software and eminent domain, to vintage race cars and death penalty habeas corpus — he has particular experience in matters involving privacy and data security, technology, intellectual property, government procurement, restrictive covenants and breach of fiduciary duty. He has tried numerous cases to jury verdict in state and federal courts, as well as bench trials, arbitrations, administrative and other evidentiary proceedings.