In addition to disrupting how and where employees work, COVID has created a minefield of possible legal responsibilities for the employer. State and federal laws require companies to provide risk-free workplaces for their employees and safe locations for customers. The coronavirus poses a threat to both. Commercial responsibility may stem from improper workplace design, poor cleanliness or a contagious employee. Employees can file COVID-related lawsuits under the Americans with Disabilities Act (ADA), Medical and Family Leave Act (FMLA) or Workers Compensation (WC).
The regulatory future is, at best, a mixed exchange. The Biden Administration has advocated a Temporary Emergency Standard (ETS) for COVID-19. The standard would create a list of steps employers must take to make their workplaces safe. The Department of Labor’s Occupational Safety and Health Administration (OSHA) (DOL) will enforce the standard. If history serves as a guide, Biden DOL will hire more inspectors to police workplaces. Upon taking office, the Obama administration dramatically expanded the DOL’s inspection capabilities.
With a 50-50 Senate and Democrats controlling a small majority in the House, the new regulations can be moderated. The limits of liability to protect businesses from COVID-related lawsuits remain a legislative bargaining chip that can be exchanged for a larger stimulus package. At this point, there is no guarantee that any federal liability protection will pass in the near future. This means that employers must do everything possible to contain the virus and prevent its spread to limit liability.
Some states have already enacted limitations of liability: Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming. These states passed legislation to limit liability or their governors did so through executive order. The following states are considering COVID’s liability legislation: Alabama, Arizona, Delaware, Illinois, Minnesota, New Jersey, New York and South Carolina.
Legal liability follows the virus
OSHA issued a series of COVID-related workplace standards during 2020. These standards were largely postponed to guidance from the Centers for Disease Control (CDC). ETS, if adopted, would be the new standard for employers. Four states; California, Michigan, Oregon and Virginia issued their own standards. Pulling on these state standards, employers can expect the ETS to require employers to:
- Conduct an exposure assessment in the workplace;
- Develop a written COVID-19 preparedness and response plan (which includes requirements for social distance, masks, warning to the worker and hygiene of the workplace);
- Establish guidelines for the use of personal protective equipment and / or engineering controls (when social distance is not feasible);
- Implement procedures for screening employees, contractors and visitors
- Conduct employee training on safe work procedures; and
- Submit reports to OSHA of positive exposures.
Failure to comply with the ETS will create various forms of employer liability. More immediately, OSHA can issue citations for failure to meet standards. Employees who complain about employer’s non-compliance will have protection for whistleblowers.
For clients, relatives and relatives of employees who contracted the virus, ETS provides a roadmap for their lawyers. Most likely, the Biden administration’s COVID response program will include enhanced contact tracking. This data can help those who can track their infection at a commercial workplace to file their case in court.
Workers’ compensation is an exclusive remedy until it is not
The toilet is the exclusive remedy for employees who fall ill at work. But WC laws have a loophole that allows employees to file lawsuits. Employees who demonstrate that employers have demonstrated gross negligence by failing to provide a safe workplace can win in court. WC policies do not cover losses resulting from the employer’s serious negligence. This could expose some employers to liability for COVID-related lawsuits if they fail to take appropriate security measures.
Again, the ETS, once issued, provides a roadmap. It is unlikely that employers who demonstrate that they have followed ETS requirements will be brought to court. In the meantime, employers must follow all OSHA and CDC COVID guidelines.
Responsibility for legal action by COVID, ADA and GINA
The Equal Employment Opportunity Commission (EEOC) issued guidelines for employers related to COVID throughout 2020. The main highlights are that employers can ask employees if they have or are experiencing symptoms of COVID before allowing them in the workplace. They can ask if the employee received a positive COVID diagnosis. Employers can measure an employee’s body temperature when they arrive at work. Employers may require employees with COVID symptoms to stay at home. None of these actions violate the ADA.
Employers, however, may incur liability if they do not follow some important provisions of the ADA. For example, any medical information obtained from the employee must be kept confidential. This includes any information about a relative’s health or health history.
For example, an employee tells the employer that she may have been exposed to COVID. When explaining her reasons for wanting to be quarantined, she reveals that her mother is diabetic and is at high risk. Although the employer may record this information, it must be kept confidential. Even if the mother is not employed, the Genetic Information Non-Discrimination Law (GINA) comes into the discussion. The Contractor cannot reveal such confidential information. In addition, you cannot discriminate against an employee based on their family history of diabetes.
Employers must maintain a confidential folder for all medical information obtained. Restrict access to any confidential information to employees with a legitimate right to know. These employees must be trained not to reveal confidential information to anyone without access privileges. The same rules apply to confidential information obtained under the ADA, GINA and FMLA
COVID, ADA vaccines and liability for litigation
In its most recent guidance, the EEOC explained the parameters for employer’s requests for information regarding an employee’s COVID vaccine status. In its questions, the EEOC provided the following:
Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability related investigation?
No. There are many reasons that can explain why an employee has not been vaccinated, which may or may not be related to disability. Simply requesting proof of receipt of a COVID-19 vaccination is unlikely to provide information about a disability and is therefore not a disability related inquiry. However, subsequent questions from the employer, such as asking why an individual did not receive the vaccination, can obtain information about a disability and would be subject to the relevant ADA standard that is “work related and consistent with business needs”. If an employer requires employees to provide proof that they have received the COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer may want to alert the employee not to provide any medical information as part of the evidence in order to to avoid involving the ADA.
FMLA and FFCRA
As of December 31, 2020, employers are no longer required to offer paid emergency medical leave (EPSL) or emergency medical and family leave. However, the tax credits available to provide you do not expire until March 31, 2021. The extension does not provide for longer periods of EPSL or paid FMLA license. However, some employees may be entitled to more FMLA licenses if they are in a new calendar year.
The Family Coronavirus Response Act (FFCRA) created EPSL and the paid FMLA license. It expanded the reasons why employees could take a vacation. Most notably, employees could take leave to take the COVID test or care for children whose school or day care center was closed. Employers can continue to grant paid leave for reasons required by the FFCRA voluntarily and be reimbursed through federal tax credits.
With or without paid leave, employers must still keep any employee waiting for the result of the COVID test at home. Likewise, any potentially exposed worker must be kept away from co-workers. Employers should review their license policies to determine whether paid leave will continue. The policy should establish how to determine the vacations available and how much will be paid. Finally, implement these policies fairly. Any favoritism shown in applying the policy can leave the employer open to charges of discrimination.
Preparing for the future
The Biden government has promised more stimulus. It remains to be seen whether this package will extend or expand the license created by the FFCRA. The limitations of liability that the legislation will contain, if any, are also a matter of conjecture.
Now is a good time to review licensing and anti-discrimination policies to ensure that they comply with existing legislation. It is also a good time to review workplace safety protocols, especially related to COVID, to protect yourself from legal liability. As the country tries to stem the growth of COVID, workplaces will be under greater scrutiny. Preparation can now save expenses later.
Additional Feature: As COVID vaccinations begin to be implemented, employers have additional legal considerations to make.