As businesses continue to reopen their doors, some employers are concerned about potential liability if an employee becomes infected with COVID-19 while at work. However, this isn't the only liability issue employers need to consider. Issues related to discrimination, leave, and privacy may also be a concern. Here's an overview of some liability considerations.
Safety & Health Protections:
Under OSHA's General Duty Clause employers must take reasonable steps to prevent occupational exposure to COVID-19. These steps may include, but may not be limited to, a combination of:
- Engineering controls (such as, installing physical barriers);
- Administrative controls to promote social distancing (such as, blocking access to gathering areas and staggering shifts to minimize the number of workers in the workplace);
- Providing and/or requiring personal protective equipment; and
- Safety and health rules (such as, requiring employees to wash their hands frequently and to wear face coverings).
In addition, some states are considering new safety and health requirements specifically addressing COVID-19. Virginia has already adopted an emergency rule that imposes new requirements on employers, including a duty to classify each job task according to the risk of exposure to COVID-19, follow certain safety practices, adhere to specific return-to-work protocols, and provide training. Additionally, many state and local orders are requiring employers to take certain precautions to protect employees who return to the workplace. If employers violate these orders, they may be subject to penalties.
States and local jurisdictions have also adopted protections for employees who raise COVID-19 concerns and/or follow orders by public health officials or healthcare providers. For example, Colorado has enacted legislation that prohibits employers from taking adverse action against a worker who raises safety or health concerns related to a public health emergency or who voluntarily wears their own PPE.
Depending on the state, workers' compensation coverage may be available in connection with workplace exposure to COVID-19. This may provide some protection for employers concerned about potential liability and damages, since workers' compensation is often considered the exclusive remedy for injuries and illnesses that arise out of work, though that protection is not absolute in all jurisdictions or situations. Consult legal counsel and your carrier to discuss what your worker's compensation policy does and doesn't cover.
In most jurisdictions, employees generally cannot waive their right to file a workers' compensation claim. In addition, the enforceability of waivers regarding exposure to COVID-19 in the workplace will vary by state, with some states prohibiting such waivers. Waivers also won't replace the employer's duty to comply with laws and guidance to maintain a safe workplace. Contact legal counsel for further information on the use of waivers.
State Liability Protections:
Some states have enacted new laws aimed at protecting employers from civil lawsuits related to COVID-19. For example, Mississippi has enacted legislation that protects employers from civil damages for injuries or death resulting from exposure to COVID-19 during the performance of an employee's job duties, where the employer can show that they attempted in good faith to follow public health guidance. Other states, including Georgia, Idaho, Iowa, Kansas, Louisiana, Nevada, North Carolina, Oklahoma, Utah, and Wyoming have also recently adopted legislation with certain protections narrowing liability. Additionally, some states, such as Alabama and Arkansas, have issued executive orders that address employer liability. Check your state law and executive orders for details. If you're in a state with such protections, discuss the potential implications with legal counsel.
Instances of harassment and discrimination by employees can increase during times of unrest. Remind employees of your anti-harassment and discrimination policies, take all complaints seriously, and launch a prompt and impartial investigation into any complaint. If an investigation reveals that harassment or discrimination occurred, consider disciplinary measures that address the severity of the offense and administer your disciplinary policy on a consistent basis.
Additionally, federal, state and local laws prohibit employers from discriminating against individuals because of disability (among other characteristics). Under these laws, employers must take steps to prevent discrimination and harassment against individuals who are disabled or perceived as disabled, including those who are exhibiting symptoms that suggest that they have contracted COVID-19. An employee who contracts COVID-19 may be entitled to a reasonable accommodation if the employee's reaction to COVID-19 is severe or if it complicates or exacerbates one or more of an employee's other health condition(s)/disabilities.
Remember, employer actions could also be found discriminatory, even if the intention was to protect an employee. For instance, employers may have questions about bringing back employees who they know have a condition that puts them at higher risk from COVID-19. However, the Equal Employment Opportunity Commission (EEOC) has stated that an employer may not exclude an employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing the employee at "higher risk for severe illness." For more information, see question G4 in the EEOC guidance here. Additionally, if an employer requires older workers to work from home because they may be at a higher risk from COVID-19, the employer would likely violate the federal Age Discrimination in Employment Act (ADEA), according to the EEOC. Unlike the ADA, the ADEA doesn't require employers to provide reasonable accommodations. However, an employer may choose to offer the option of telework or other accommodations to older workers.
Prior to the pandemic, many jurisdictions had enacted laws requiring employers to offer paid sick leave, family leave, and/or all-purpose leave. While some of these laws would cover situations related to COVID-19, the pandemic prompted some jurisdictions to expand their laws. Additionally, several jurisdictions passed emergency requirements for employers to offer paid leave to employees impacted by COVID-19. The federal government also passed the Families First Coronavirus Response Act (FFCRA) mandating leave for certain COVID-19 related reasons. Paid leave laws and associated regulations continue to evolve. Monitor the situation closely and ensure compliance with all applicable requirements.
When screening employees for COVID-19, state privacy laws may require employers to provide notice at the time of collection, describing what information will be collected (such as, body temperature) and the purposes for which it will be used (such as, to maintain a safe work environment).
If an employee is confirmed to have COVID-19, inform other employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality (that is, don't reveal who has the illness). Treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file. Also, the Genetic Information Nondiscrimination Act generally prohibits employers from asking employees about their family's medical history, so avoid asking whether family members have COVID-19. However, the EEOC says employers may ask employees whether they have had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with COVID-19.
Employers should consult with legal counsel to assess potential liabilities and help avoid claims related to COVID-19.