“Can employees sue their employers if they catch Coronavirus on the job?” That’s a question on the mind of many small and large business owners across the country as different states enter various phases of reopening in the midst of the Covid-19 pandemic. And while this is fairly uncharted legal territory, there are a few signs of what businesses owners can do to protect themselves from potential lawsuits
First, a few things to consider:
- There have already been class-action lawsuits, primarily aimed at larger national companies like McDonalds, WalMart, and Amazon who employees claim are providing inadequate testing, PPE, and contact tracing.
- There are some protections for business owners, but they’re legally up in the air. Congress has been debating a Federal protection for businesses against claims by employees and customers as a part of a new round of stimulus legislation, but both that provision and negotiations about the larger funding bill itself are currently stalled in both chambers of Congress.
Another protective route some businesses have begun exploring is having customers and employees sign waivers that promise they will not sue if they catch coronavirus while on site. While some see this as a smart protective layer to shield businesses from liability, there are many who contend that the waivers ultimately might be unenforceable, depending on how courts state-by-state interpret workplace safety regulations that are already on the books.
- OSHA has been releasing continually-updated guidelines for created a safe environment for workers and customers, but there are just guidelines, NOT enforceable laws or regulations. This has led to some confusion about whether these guidelines can be used as a basis for employees to file lawsuits claiming negligence in the workplace. One of the first big tests came last month when the AFL-CIO’s lawsuit against OSHA was denied by the DC Circuit court, but that decision applies to OSHA’s responsibility to provide stronger regulations, not to the responsibilities of individual business owners.
Long story short, the law surrounding Covid-19 liability is far from settled, so in the interim it is best for businesses owners to err on the side of caution by following the current OSHA guidelines and do all they can to create a safe environment for customers and employees. This includes common sense provisions such as:
- Making space for social-distanced interactions
- Providing PPE and sanitizer
- Encouraging the use of masks
- Installing plexiglass to protect face-to-face interactions
- When possible, allowing employees to work remotely to reduce the physical headcount onsite.
Understand that doing these simple things, aside from providing health benefits and making customers and employees feel safer, can also shield you from liability. To wit, thousands of workers have filed complaints with OSHA since the start of the outbreak, but an overwhelming portion of these complaints have been dismissed as employers and supply chains caught up to best-use guidelines by the CDC. In fact, to date, only one business has incurred a significant fine from OSHA: a nursing home in Atlanta that failed to disclose Coronavirus cases in their facility. While some cases are still under investigation, almost 5,000 others have been closed by OSHA after employers were able to prove they had provided adequate protections for their employees.
Still have questions about your obligations or strategies for protecting your business from liability? Reach out today: we’ve spent years helping out our neighbors in North Metro Atlanta with business and legal matters, and we’re here to help.