Employers face a number of serious ethical and legal questions as they begin to weigh reopening their workplaces. Under the federal Occupational Safety and Health Act (OSHA) as well as state law, employers have a duty to provide a safe workplace, which includes not exposing job applicants and employees to an unreasonable risk of contracting the COVID-19 virus.
Employers should be guided by best practices outlined by the governors and responsible agencies like the Department of Labor (DOL) (which administers OSHA), the Centers for Disease Control and Prevention (CDC), and the Equal Opportunity Employment Commission (EEOC). However, compliance with these guidelines, while essential, will not necessarily relieve employers of the risk of litigation and liability.
Like the virus itself, the circumstances employers face are novel, and the wide array of employment laws will thus need to be applied to essentially novel circumstances.
Liability for Unsafe Workplaces
Under OSHA, the employer’s duty includes providing a workplace “free from serious recognized hazards and comply[ing] with standards, rules and regulations” issued under that law. The DOL can initiate investigations of workplaces based on anonymous employee tips, and bring suit against employers who it believes are not complying with safety regulations. Many states have similar workplace safety laws.
It is a mistake to assume, as some employer groups have, that state workplace compensation laws will preclude coronavirus liability by shunting any clams to a no-fault process covered by insurance. That would be the effect if COVID-19 infection were treated the same as physical injury. It is simply not clear that workers’ compensation laws will cover virus infections, and there is likely to be a great deal of protracted litigation to sort the issues out.
Legislation Limiting Tort Liability for COVID-19 Contraction
It is possible that Congress will pass legislation that limits, in some respects, liability for employers during a reopening. Such legislation could, for example, reduce the likelihood of a finding of negligence where employers can show they complied with all state and federal guidelines in reopening the workplace. President Trump has stated that his administration is “trying to take liability away from these companies” and that a legal opinion would be forthcoming. The U.S. Chamber of Commerce recently laid out a comprehensive proposal that would limit employer liability during a reopening, though “the protections would not be available for companies guilty of gross negligence, recklessness or willful misconduct.”
Notably, legislation that limited liability for companies implicated in the September 11, 2001, attacks on the World Trade Center passed Congress with bipartisan support. However, it is unlikely that a similarly broad liability shield would receive enough support to pass the House of Representatives. Various unions and other employee advocacy groups have made clear they would adamantly oppose so-called liability shields.
Keeping Sick Employees Out of the Workplace: Testing and Other Concerns
With limited testing available, it may be unwise for employers to bring non-essential workers back to the workplace, especially those who are able to work from home and where social distancing at the workplace may not practicable. For employers who choose to bring their employees back to work, employers must create reasonable safety protocols based on the hazards of the specific workplace. OSHA recommends developing an “infectious disease preparedness and response plan” which should include various safety protocols and updated workplace rules. Such plans should include complying with the CDC’s social distancing recommendations as much as possible, as well as the appropriate use of personal protective equipment (discussed below). If social distancing is not available in certain workplaces, employers may want to consider limiting the number of employees who work on a given day.
Despite the current lack of testing, employers may be liable if they allow employees with COVID-19 to enter the workplace who subsequently infect others. Employers can (and likely should) ask employees whether they have tested positive for the virus or are experiencing symptoms associated with COVID-19. These would be job-related inquiries and not a violation of federal disability law. However, employers who ask about symptoms should be careful to comply with relevant privacy regulations. For example, employers must keep any health-related documentation in a separate file from the employee’s regular employment file and take reasonable precautions to ensure such information is only accessible on an as-needed basis. Employers should not terminate workers who present symptoms associated with COVID-19 or report they have tested positive. Such employees should be put on leave until they provide a medical certification that they are safely able to return to work.
If employers choose to bring some employees back to work and not others in order to maintain effective social distancing protocols, state and federal anti-discrimination laws may be implicated. The EEOC cautions that employers may not discriminate against employees based on age or pre-existing conditions in deciding who can return to work, even though employers may have the safety of their workers in mind when making such decisions. Although under the Americans with Disabilities Act (ADA) the employer generally should not initiate questions regarding individuals’ underlying health conditions, under current circumstances a “direct threat” to employee health and safety must be minimized, and thus reasonable inquiries are permitted. Because the ADA is implicated, the employer must engage in an “interactive process” with individual employees who may be at higher risk in order to determine reasonable accommodations. One option is to allow older workers or workers with disabilities (which include those workers with pre-existing conditions putting them at higher risk) to choose whether to continue to work from home, if possible. Other options could include, for example, limiting some workers’ contact with fellow employees or customers by changing certain work responsibilities.
Once testing for COVID-19 becomes more widely available, employers may be able to require that employees be tested even though federal law typically limits the medical testing that employers can require. The CDC and the EEOC have determined that the existence of COVID-19 in the workplace poses a “direct threat” to the health and safety of employees, so employers may require employees to undergo testing for COVID-19. Again, any health documentation which employees are required to provide must protect employee privacy in compliance with the ADA and state law.
Once antibody testing becomes reliable and widely available, there are additional legal ramifications employers should consider. Employers who discriminate against those who test negative for antibodies as compared to those who test positive could be liable under the ADA and state law. This area of the law is untested and further guidance is likely to be forthcoming as antibody testing becomes more widely available.
Facemasks and Other Safety Equipment
For those employers who choose to bring their employees back to the workplace prior to the availability of widespread testing, safe hygiene and social distancing protocols are essential and should be well documented by the employer. Employers must make adequate soap and/or hand sanitizer available to employees and should require employees to wash their hands regularly. Furthermore, employers may consider requiring or permitting employees to wear protective equipment, including gloves and face masks, among others. Where such equipment is required or permitted, different OSHA standards apply.
Where employers require employees to wear safety equipment, including face coverings, OSHA regulations are stringent. For example, the equipment must be the least restrictive means for achieving safety, and the employer must provide employees with adequate training in the use of the equipment and provide it to the employees free of charge. Nevertheless, workplaces that do not allow for adequate social distancing may be well advised to require employees to wear face masks and use gloves. A court could find that an employer was reckless for not doing so given that under OSHA regulations employers must require PPE “wherever it is necessary by reason of hazards of . . . environment . . . encountered in a manner capable of causing injury or impairment … through absorption, inhalation or physical contact.” Most face coverings may help limit transmission should the wearer be a carrier of COVID-19, but they do not necessarily protect the uninfected individual from contracting the disease, so requiring all employees to wear face masks may be necessary.
Where employers make safety equipment optional or recommended, but not required, employers need not provide training on the use of such equipment nor provide it to the employees. However, employers would still need to ensure that employees are properly sanitizing the equipment and that it does not pose a risk to themselves or others. Nevertheless, strongly encouraging employees to wear face coverings and/or gloves, training them on best practices in the use of such equipment, and providing the equipment free of charge to employees may be important steps for limiting transmission and avoiding liability.
Risk of infection creates a challenge for existing regulation of the workplace. Given that employers and employees alike depend on the successful functioning of the economy, regulation should be applied in a reasonable manner. Where an employer follows all state and federal guidelines and takes all reasonable precautions during reopening, an ultimate finding of liability for the employer seems unlikely. However, the regulatory safety hurdles are challenging for even the most well-resourced companies, so those employers who are not able to meet their duty to provide a safe workplace should not succumb to the public pressure to reopen quickly.