As the country gradually begins to open back up from lockdown, businesses should understand the most recent Centers for Disease Control (CDC) workplace guidelines in response to the COVID-19 pandemic.
Vigilance will help stave off the possibility of employees filing legal action against their employers, Travis Vance, chair of the COVID-19 Task Force and co-chair of the Workplace Safety Practice Group at Fisher & Phillips LLP, told the Northern California Record.
“The best guidance is the CDC. Look at their guidance on educating employees about symptoms they may have, what to do if there’s a confirmed case, when it’s safe for them to come back,” Vance said.
“That’s the most important thing, because we don’t really have case law on point.”
Besides worker compensation claims, or lawsuits alleging personal injury or wrongful death, there’s possibility of investigation by the Occupational Safety and Health Administration (OSHA) for violating its General Duty Clause, which requires businesses to furnish to each worker, “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers have filed thousands of complaints with OSHA in recent weeks, according to a report in the Washington Post.
OSHA also has released workplace preparedness guidelines.
“If [an employer] is aware of a confirmed case of coronavirus and they don’t tell the workers, that’s one that they have to know will at least bring an OSHA citation, that’s one that can get you in trouble in my opinion,” Vance said. “If I was an employer, I wouldn’t want to be in a position where I hadn’t followed those guidelines,” he added.
In one of the first coronavirus-related lawsuits against an employer, the family of a Walmart employee who died March 25 from COVID-19 alleges the retailer failed to follow CDC and OSHA direction to protect workers. Another employee from the same store died March 29.
In a statement emailed to the Record, Walmart spokesman Randy Hargrove said, “We are heartbroken at the passing of two associates at our Evergreen Park store and we are mourning along with their families. We took action to reinforce our cleaning and sanitizing measures, which include a deep-cleaning of key areas. The store passed a third-party safety and environmental compliance assessment as well as a health department inspection. As an extra precaution, we brought in an outside company to further clean and sanitize all high-touch surfaces in the store, which included the decontamination of front entrances, carts, registers and bathrooms, as well as food areas including produce and meat."
"Additionally, we have taken steps across the country to protect our associates and customers, including additional cleaning measures, installing sneeze guards at registers, placing social distancing decals on the floors and limiting the number of customers in a store at a given time. We’ll continue to take steps, such as screening associates, conducting temperature checks, and providing masks and gloves for associates that want to use them," Hargrove said.
"We take this issue seriously and will respond as appropriate with the court."
For all intents and purposes, Vance said, there are two key considerations outside of the CDC guidelines and OSHA standards:
1. “Think about employee relations. I can’t overstate the importance of engaging with employees. If you engage with them and educate them about how you’re responding to make the workplace safe, they’re less likely to be upset with you and want to file a lawsuit.”
2. Public perception. Employers need to keep in mind what the public’s response will be to a company that fails to protect its employees. Wanting to avoid bad publicity can make a company, “more likely to make better decisions and will put it in a better position to avoid a lawsuit or other type of claim,” Vance said.
In his role since late February, Vance has counseled more than 400 employers on what needs to happen when workers start going back into offices. Key among the issues is “soft spatial changes” that allow more room among work spaces, as well as staggering lunch breaks and arrival times.
They are watching how businesses deemed essential are practicing it now, Vance said.
In the California manufacturing community, companies deemed essential in accordance with Department of Homeland Security guidelines, “are confirming very aggressive and compliant safety protocols to keep their workers safe,” Gino DiCaro, Senior Vice President for Communications at the California Manufacturers and Technology Association (CMTA), told the Record.
The governor’s Office of Business and Economic Development and Office of Emergency Services also have provided guidance.
CMTA recently conducted a survey of roughly 150 manufacturing companies.
“Of the respondents, at least 60 to 70 percent are open, and they are operating at or above 50 percent capacity, and in some cases at 100 percent capacity,” DiCaro said.
It is a broad spectrum of companies, “from large aerospace manufacturers to a small mom-and-pop five-man shop making rubber and plastics that go into ventilating machines, to print shops that are opening up to make masks and face shields,” DiCaro said.
“They are looking at the guidelines, they are posting notices on their doors and safety protocol posters around in the workplace and ensuring their workers adhere to those guidelines,” DiCaro said.
“Workers have been given the option to not come to work, and the large majority who are coming to work are staying safe and keeping the California supply chain robust, which is really essential,” he added.
Some in the legal community feel lawsuit plaintiffs could face difficulty.
“Frankly, I think it would be very difficult to prove that anyone received COVID-19 from any specific source,” Luke Wake, senior staff attorney at the National Federation of Independent Business (NFIB), told the Record. “So, I doubt that lawsuits predicated on a theory of negligence will be successful because it will be difficult or impossible for the plaintiff to prove causation.”