How to Defend a Claim of Workplace COVID-19 ExposurePublished on June 15, 2020
As states begin to relax ‘stay at home’ orders and open up certain sectors of the economy, the number of lawsuits related to COVID-19 are increasing rapidly. Legal actions have been wide ranging. Businesses have filed suit against state or local jurisdictions. Employees have filed suit against employers. Families of virus victims have filed suit against employers as well.
As the outbreak of the virus began, the term ‘flatten the curve’ became the mantra. Along with that mantra came the guidance to support the desired outcome that included hand washing, social distancing, and the use of face mask. Similarly, employers can ‘flatten the curve’ or reduce the risk of liability by following similar business guidance related to COVID-19.
Pandemic Response Plan
As many of the states entered phase one, guidance was provided to employers related to worker and workplace safety. In many parts of the country, the marina industry was considered essential business and, as a result, may have already implemented those safety protocols. Every business should, by now, have developed and implemented a written Pandemic Response Plan. The plan should detail topics such as facility access, personal protection equipment (PPE) requirements, social distancing, sanitation procedures, employee medical screening procedures, and employee training.
Employees should have been trained on the details of the virus (symptoms, hygiene and control measures), new procedures and new requirements within the workplace. The employee training should be documented. Other documentation may include sanitation schedules, corrective actions or other changes implemented.
On May 19, the federal Occupational Safety and Health Administration (OSHA) released an updated memo for Compliance Safety and Health Officers (CSHO). For many business owners or managers, the CSHO is often referred to as the OSHA investigator and the document served to provide the CSHO guidance when responding to COVID-19 cases. The updated memo provided an interesting insight. Within the document, OSHA acknowledged “the difficulty of determining work-relatedness” of COVID-19 cases. In addition, the document stated, “Employers, especially small employers, should not be expected to undertake extensive medical inquiries.” The memo went on to list the steps employers should take related to investigating a COVID-19 case in the workplace and defined when COVID-19 cases may or may not be work related.
The Pandemic Response Plan will detail how to manage the employee with a confirmed case, presumptive case, or COVID-19 symptoms. The May 19 memo also stated employers, upon learning of a confirmed case of COVID-19, should take a few keys steps. Assuming the employee is not at the workplace, a phone call may be required. The employer should:
• ask the employee how they believe they contracted COVID-19;
• discuss work and out-of-work activities that may have led to the COVID-19 illness;
• review the employee’s work environment for potential exposure.
The employer should identify employees that meet the 6/15/48 criteria, meaning employees that have been within six feet of the confirmed case for 15 minutes duration in the 48 hours prior to the onset of symptoms.
Completing this minimal investigation is key to not only preventing an outbreak but to demonstrate ‘good faith’ in terms of the employer response.
Federal OSHA provided guidance for three scenarios where COVID-19 illness is most likely work related. Even with the guidance, making a final determination may be both challenging and subjective. COVID-19 illness is most likely work related:
• when multiple employees develop the illness with no alternate explanation;
• when the virus is contracted shortly after lengthy contact with a customer or coworker with a confirmed case without an alternate explanation;
• when the employee has close and frequent exposure to the general public in a locality with community transmission without an alternate explanation.
Discovering the alternate explanation may be achieved by following the investigative guidance issued by OSHA. When multiple coworkers develop the virus, were those employees congregating outside of the workplace? For the employee with exposure to the general public, was the employee exposed by a relative or friend? The possibility of a person being asymptomatic also creates challenges when determining workplace exposure.
So what happens when an employee claims COVID exposure in the workplace? As OSHA stated, confirming workplace exposure may be challenging and the employee would need to claim how and when the exposure occurred. Assuming the employer has followed the previous outlined steps and developed a Pandemic Response Plan, implemented plan protocols, trained staff, prohibited sick employees from entering the facility, and conducted the investigation upon learning of the confirmed case, the employer has completed a ‘good faith’ effort to keep employees safe. When protocols are in place and followed consistently, the risk of workplace exposure is low. As a result, the employee claim may be difficult to substantiate.
What about a customer claiming COVID-19 exposure while visiting a business? Such a claim may be difficult for a customer to substantiate. While the OSHA guidance would not apply to a customer, the logic of an ‘alternate explanation’ may certainly apply. If a customer is visiting a business such as a marina, one could certainly argue that perhaps the client visited the grocery store, gas station or local restaurant for take-out food. At the same time, with the Pandemic Response Plan in place and no evidence of COVID-19 illness in the workplace, it may further support the case for an alternative explanation.
Good Faith Effort
As stated in the opening, the number of COVID related lawsuits is rising rapidly. At the end of the day, it will be difficult for the employer to stop the initiation of legal action. However, following all applicable regulations and guidance will be most helpful to demonstrate the ‘good faith’ effort of the business. The documentation related to business response, including the Pandemic Response Plan, employee training, medical screening and confirmed case investigation, will be a key part of defending the business from such claims.