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Rebooting After Covid-19: Employer Liability Concerns

As some states ease lockdown restrictions and America begins to return to work, some businesses eager to reopen their doors facing a whole new headache: fear of their potential liability. Incurring a lawsuit due to possibly exposing employees and customers to the virus is a driving concern for employers; so much so that it’s become a point of contention among federal lawmakers as they hammer out a second coronavirus relief bill.

Businesses and their advocates, such as the U.S. and local Chambers of Commerce and trade associations, are demanding assurances that employers who follow state and federal safety guidelines will have legal protection. The U.S. Chamber of Commerce and other business leaders want Congress to give employers immunity from COVID-related lawsuits as they reopen their businesses, except in cases of gross negligence or wanton misconduct. Failure to do so, they insist, will make an already bad situation worse for many enterprises.

The Chamber’s chief policy officer, Neil Bradley, recently told CNN: “The fear is that small businesses will do all of the right things that public health officials tell them to do, and then someone gets sick and contracts Covid-19 and sues the employer.” The organization insists the concern is not merely theoretical, as it claims that several hundred lawsuits have already been filed.

To guard against liability, legal experts have been advising companies to implement COVID-related safety measures recommended by the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA) and state and local governments. OSHA provides regularly updated guidance on appropriate health and safety measures for different industries, an enforcement response plan for handling COVID-19-related workplace complaints and illness reports made to OSHA, and a set of standards and directives for preventing worker exposure to the virus.

The New Normal

What all this will mean is a new normal for the American workforce. Going to the office will now likely entail being required to wear a face mask, having your temperature checked as you enter your building every day, and maybe even your blood tested before you are cleared to return.

As for the post-lockdown Covid-19 workplace, this is new and uncharted territory. Labor and employment attorneys warn that employers should be careful about how they treat employees who refuse to return to work over safety concerns, especially in such sectors as the service industry, because disciplining them could lead to charges of retaliation.

Helping Employees Stay Well

Up to 64 percent of salaried U.S. employees are currently working from home, according to the Society for Human Resource Management (SHRM). For safety reasons, many may wish to continue doing so even after state stay-at-home orders are lifted. Then there is the issue of widespread school closings, which have raised concerns about child care. For workers willing to return to the office, companies are advised to stagger shifts, reconfigure their workspace, install plastic dividers between workers when six feet of separation cannot be maintained, and raise cubicle walls.

More stringent measures are being rolled out in hard-hit places like New York City, such as taking people’s temperatures with thermal cameras as they enter office buildings. Some U.S. employers also may follow the lead of major European companies: Ferrari is testing their staff’s blood for Covid-19 antibodies before they can return to work, for instance. In the U.S., Wynn Resorts in Las Vegas has opened a virus testing center in preparation for reopening in late May; staff from the University Medical Center will test employees for free. Toyota’s plan to restart production entails staggered shifts, distributing personal protective equipment (PPE) to workers and conducting daily temperature screenings.

As businesses look for ways to keep their employees healthy and productive, their allies are demanding the federal government provide a consistent, uniform set of workplace health and safety guidelines instead of relying on a state-by-state patchwork. According to the Business Roundtable: “Americans want to feel confident returning to work and being in public spaces, and employers who operate in multiple states and want to keep their employees and customers safe need the clarity that consistent guidelines provide.”

Contention Over Workers’ Comp  

Since workers’ compensation laws usually cover “occupational diseases” contracted at work as well as physical injuries, some states are looking at their workers’ comp programs as a way to assist employees who contract Covid-19 on the job. Florida is acting to ensure that workers in high-risk occupations are eligible for workers’ comp benefits if they become infected in the course of their work.

Typically, an employee who makes a workers’ comp claim must prove that the injury or infection happened in the workplace. If their claim is successful, they cannot collect state unemployment benefits. Nor can they later file a negligence lawsuit against their employer.

But the business community is pushing back, arguing that expanding Covid-19 workers’ comp protections for non-frontline workers or first responders will increase costs for employers who are already struggling enough. In Illinois, business groups successfully rejected the expansion of coverage for non-healthcare workers, claiming that amending laws could create an automatic presumption that an employee contracted the virus at work. Instead, the U.S. Chamber and others propose shifting the burden of protections to government programs — specifically the expanded Pandemic Unemployment Assistance program that’s part of the federal CARES Act.

And in the meantime, what is clear to all sides is that the pandemic brings tremendous uncertainty, no matter how, and when employees return to work. With nearly two-thirds of all salaried employees working remotely, employers may have to curtail their expectations on what the workforce is willing — or able to do, at least until a Covid-19 vaccine is developed and available. And that could be more than a year away.