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June 7, 2020 in

Liability on Employers in the Wake of COVID-19

Liability on Employers in the Wake of COVID-19

A previously unidentified coronavirus has caused the 2019 coronavirus disease (COVID-19), in turn sparking a global pandemic and leaving no one unaffected. As a result, a greater emphasis is being placed on technology as school is being conducted from home, important business meetings are being held on video conferencing platforms, and families are catching up on video calls to avoid the spread of this disease. All of these efforts are being made so that the infection curve is flattened.

Liability of Employers During COVID-19 by Watts Guerra

Initially only essential businesses were allowed to remain open, however, non-essential businesses are beginning to reopen. Employers are now left to make decisions on how to navigate these unprecedented times quickly and safely while ensuring their employees and customers remain safe and healthy. Although there are many things to think about in regards to how this novel coronavirus will impact our new “normal,” employers face particularly difficult decisions regarding how to handle issues impacting their liability in the wake of COVID-19.

Following the CDC and OSHA Guidelines

To help employers cultivate a safe work environment, the CDC has provided guidance for businesses and workplaces to “plan, prepare, and respond” to the 2019 coronavirus disease. The goal of this guidance is to set a strict standard that companies must abide by in order to reduce the chances of the disease spreading within their establishment. In their “Workplaces Decision Tool,” the CDC recommends workplaces to promote healthy hygiene practices as well as intensifying cleaning and disinfection practices.[1] In addition to healthy hygiene, the CDC recommends social distancing and enhancing spacing between employers.

OSHA has also produced a guide for workplaces to prepare to open during COVID-19. Such recommendations include putting in place policies for isolating individuals who have symptoms of COVID-19, as well as the ability to work remotely, and providing face masks for employees.

Legal Liabilities and COVID-19

In lieu of the COVID-19 outbreak, there is more than just exposure to COVID-19 to be worried about, especially if you are a business. While this information is helpful for employers to determine when and how to open up safely, employers should not turn a blind eye to the legal ramifications COVID-19 poses. Thus, employers must act to ensure the safety of employees and avoid the “explosion” of tort claims as best as possible.

Prematurely Reopening

An employer prematurely requiring employees to return to the office can cause severe repercussions in terms of the employer’s liability. First and foremost, employers must be mindful of whether or not they are able to open and work in accordance with the CDC recommendations and mandatory regulations. Moreover, employers should have a plan in place for a proper return to the workplace, as well as a process to handle those who do become ill.

One example of many plans put in place by large companies includes UPS’s employee protection plan. UPS has increased the cleaning of all its facilities. Additionally, UPS is encouraging employees to follow CDC guidelines and has added space between works stations in its facilities. UPS is refilling automatic hand sanitizing stations and providing drivers sanitizing supplies for their vehicles. Moreover, UPS is providing an emergency paid leave program to employees affected by the virus.[2] UPS has even launched a daily newsletter for its nearly 500,000 employees to address the most relevant information on COVID-19.[3] If that wasn’t enough, UPS has also suspended customers from signing for signature required packages in order to limit interaction between their customers and employees.[4] All of these precautions are meant to protect both their employees and customers.

Liability on Employers in the Wake of COVID-19 Watts Guerra

Employee Complaints

As stay-at-home orders are beginning to lift and employees have been asked to come back to work, the floodgates for potential complaints to be made by employees has begun. Attorneys have predicted an “explosion” of tort claims related to the COVID-19 outbreak.[5] According to law.com, allegations include the placement of workers in unsafe conditions, employees denied wages and discrimination during layoffs. As unemployment claims rise, the likelihood of tort actions against employers will likely rise as well. However, to file a successful claim for workers’ compensation in the state of Texas, “an employee must have been injured or contracted an occupational disease as a result of their employment.

McDonald’s has since been hit with a class-action lawsuit seeking their compliance with the CDC’s guidelines, targeting McDonald’s as a public nuisance. The lawsuit cites inadequate safety practices as having broader public health consequences. Additionally, the workers will need to show the company created an unsafe workplace that contributed to its spread. Such a lawsuit might be the first of many by employees to push a business to engage in proper guidelines set forth by the CDC.[6]

Employee Compensation

Employers must be careful about providing rightful compensation for their employees. Employees may decide to continue working from home for various reasons, such as to protect themselves, or their loved ones, who may be considered high-risk, as well as issues regarding lack of childcare during the pandemic. Issues preventing employees’ ability from returning to work should not prevent them from just compensation. Employers must ensure that those working from home are properly compensated.[7] Employers should set up a clock-in/clock-out system that employees working from home can utilize to ensure accurate payment.

Legal Liabilities and COVID-19 by Watts Guerra

Moreover, the U.S. Department of Labor passed the Families First Coronavirus Response Act (FFCRA) requiring “certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.”[8] This requirement applies to certain public employers and private employers with fewer than 500 employers.[9] Qualifying reasons for leave include required quarantines, COVID-19 symptoms, and caring for a child whose school or place of care is closed. In light of the FFCRA, employers who fall into the applicable category must be mindful of properly compensating employees.

Avoiding Discrimination

Finally, employers must be mindful of not discriminating against employees in regards to layoffs. For example, older employees, those considered high-risk, and those with children being laid off may result in a discrimination claim. The Equal Employment Opportunity Commission (EEOC) has provided guidance on federal anti-discrimination laws and COVID-19, most of which refers to the Americans with Disabilities Act (ADA).[10] Employers should also be aware of their obligations under the Age Discrimination in Employment Act (ADEA) as they ensure they are not discriminating against older employees, while also protecting them from workplace harassment. Employers should seek to accommodate their employees to avoid such discrimination claims.[11]

Future Legislation

The fear of an “explosion” of lawsuits has resulted in the U.S. Chamber of Commerce and Senate Majority Leader Mitch McConnell calling for legislation to protect employers from liability in lawsuits flowing from the COVID-19 outbreak.[12] Businesses may see future protections in their liability from COVID-19 lawsuits.

Despite all of the guidance, employers must be ready to balance both safety for employees and themselves as their doors begin to open. As we all adjust to the new restrictions COVID-19 brings, we must err on the side of caution and practice consistent safety standards in the workplace. Additionally, different considerations for creating a plan are necessary depending on the level of risk of exposure to COVID-19 in the workplace. Having a solid plan that is incorporated into your standard operating procedures ensures that it becomes part of the company’s culture. Regardless, there are a few standard things that should be considered: whether or not employees will be required to wear masks, whether reopening should be in phases, and whether employees’ temperatures should be taken before they enter the workplace. Most of all, all employers should be encouraging social distancing through the installation of physical barriers and the use of technology.

 

Written by:

Kelsey Abbey
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

 

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[1] https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/CDC-Activities-Initiatives-for-COVID-19-Response.pdf#page=49
[2] https://www.ups.com/us/en/about/news.page
[3] https://www.uschamber.com/co/good-company/launch-pad/big-businesses-share-coronavirus-worker-safety-practices
[4] https://www.uschamber.com/co/good-company/launch-pad/big-businesses-share-coronavirus-worker-safety-practices
[6] https://www.reuters.com/article/us-health-coronavirus-mcdonald-s-corp-la/covid-19-lawsuit-takes-on-mcdonalds-like-it-was-a-rowdy-bar-idUSKBN2321H6
[7] https://www.hinckleyallen.com/publications/what-employers-should-consider-in-the-wake-of-coronavirus-covid-19/
[8] https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
[9] https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave#_ftn1
[10] https://www.eeoc.gov/coronavirus
[11] https://www.jdsupra.com/legalnews/covid-19-and-the-age-discrimination-in-81865/
[12] https://www.abajournal.com/news/article/mcconnell-says-aid-bill-must-include-liability-shield-for-businesses-and-hospitals