Can my employees sue me for Covid-19 exposure?
Employment Law guidelines are typically pretty well established and straightforward. Don’t discriminate, don’t retaliate against whistle-blowers, don’t harass your employees, etc. The coronavirus presents a different set of liabilities however. The intersection of public safety concerns, OSHA requirements and employee confidentiality has created a confusing situation for business owners.
Generally, following the guidelines provided by the relevant local governmental authorities will protect employers from Covid-19 liability. Business owners must proactively stay informed of changing requirements in order to stay protected. If employees are exposed unreasonably however, they may be able to directly sue their employer.
How does worker’s compensation insurance affect Covid-19 liability?
Usually the only remedy that an employee has for a workplace injury is worker’s compensation insurance. Everywhere in the U.S. (except Texas), employers are required to provide worker’s compensation insurance for all employees. In addition, California's worker’s comp law is 'no-fault.' This means that the insurance policy will kick in and cover the costs of an injury regardless of who 'caused' the injury. Most Covid-19 workplace infections probably fall into this no-fault category.
As mentioned in the intro, employers will probably enjoy the benefits of workers comp protection if they follow the most recently updated guidelines and rules. Nonetheless, in California we have a few exceptions.
One exception deals with toxic substances and being unreasonably exposed. If an employee can prove that there was (1) exposure to a toxic substance, (2) the employer should have known about the exposure and (3) the employer didn’t do anything about the exposure, then, it is possible, that the employee could bypass the no-fault worker’s comp system and sue their employer directly. Whether or not Covid-19 germs are a “toxic substance” in this context remains unknown. Undoubtedly cases will work their way through the courts over the next months and years.
California law also states that an employer is liable if the 'inherent risk in the employment relationship is exceeded.' For example, a woman hired as a cocktail server at a nightclub understands the risks that she is likely to be exposed to. Spilled drinks, flirtatious patrons, lots of hours standing and walking, etc. If the nightclub owner directs her to work security for the night however, this clearly creates risks that were not inherent to the cocktail server job (security is more dangerous than cocktail serving).
Similarly, an office employee might argue that their job description did not include the inherent risk of being exposed to a deadly virus and that being exposed by another employee exceeded that risk. Whether or not this “inherent risk” doctrine will make its way into the Covid-19 world remains to be seen.
If an employee gets sick, what should the employer say about it?
We usually have a pretty strong system of confidentiality in place for personnel issues at work. Medical conditions are private and several sets of laws protect that privacy. Covid-19 is particularly contagious however and, like many contagious diseases, an employee has a right to know if they have been potentially exposed. The problem is quickly obvious. How do you maintain confidentiality and also properly keep employees informed of potential exposures by other employees?
The short answer is that bosses need to do the best they can to be professional and confidential. Even if it is relatively obvious who the infected person is employers should still strive not to name them specifically.
Additionally, per the recommendations from the CDC and OSHA linked below, employers will need to take proactive measure to clean and disinfect potentially affected work areas.
Can an employer insist that employees get tested for Covid-19?
As of the time of this writing (March 22, 2020), there aren’t nearly enough Covid-19 testing kits to go around, so, it’s not really an issue yet. Presumably in the future however testing kits will be widely available to the public. Once they are, can an employer mandate that employees are tested? Probably not.
Employers are prevented from insisting on medically examining employees unless they can show that they are trying to prevent a “direct threat.” In 2009 the EEOC issued guidelines for pandemic preparedness and specified that it likely does not justify medical exams by employers however.
Lately the Centers for Disease Control (CDC) has been providing regular updates and guidance on how to handle workplace Covid-19 scenarios located here. These recommendations will override pre-existing employer limitations on testing, confidentiality and attendance.
What should employers do to protect their employees?
OSHA guidelines include a general duty clause that requires employers to furnish “a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.” OSHA has followed up with their own guidance for employers including requiring them to create an infection preparedness plan and a policy for identifying and isolating potentially infected people.
As of the time of this writing the entire State of California is under a governor’s order to avoid going to work at non-essential workplaces, which makes some of this much simpler. For 'essential' businesses that are allowed to keep operating, owners and supervisors need to be extremely vigilant that they are doing the right thing. The basic steps below are a good starting point to avoid legal liability:
Check the CDC website every morning for updated guidance on employer/employee interactions
Check the OSHA website every morning for updated guidance on employer/employee interactions
Put employee and customer safety first and everything else second.
There is a small chance that the federal or state government will pass legislation limiting the ability of employees to sue their employers for Covid-19 infections. This has not happened yet, nor is it in the pipeline currently.
For now my best advice for employers is to think long-term. Imagine yourself sitting in front of an angry jury while a frothing personal injury attorney questions you about what you did to protect your employees and when. You are going to want to be able to calmly recount how you did everything you could to keep them safe.
If you have specific questions about Covid-19 and employer liability don’t hesitate to contact me.