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What a Long Strange Trip it’s Been: As Workplaces go from Shutdown to Reopening, Should They Now Have Liability Concerns?

“Lately it occurs to me what a long, strange trip it’s been.” Looking back over the past three months, those lyrics from the Grateful Dead seem so appropriate.

In early March, the economy seemed to be humming along, restaurants and movie theatres were busy, and many of us eagerly anticipated another season of Major League Baseball, featuring the newly crowned World Series Champion Washington Nationals. A few weeks later, however, we were suddenly dealing with the ravages of a worldwide pandemic. State and local governments issued shut-down orders and many businesses closed their doors. Employers whose businesses were closed were rightly concerned about their employees’ personal health, safety, and well-being, but also about those employees’ financial health and security.

Now, many businesses are re-opening, which is good news both for employers’ balance sheets and employees’ pocketbooks. But employers are nervous, as they remain concerned about their employees’ health and safety. They are also concerned about possible liability. What if a business re-opens, and employees contract COVID-19 disease from the novel coronavirus and become seriously ill or worse? Could the employer be liable? In this article, we address that topic.

We start by looking at the Workers’ Compensation Act, which is aimed at compensating employees for accidental injuries suffered at work.

The Workers’ Compensation Act and “Occupational Disease”

The Act is intended to give employees an exclusive remedy that frees them from the need to prove negligence or fault on the part of their employers. Will the Act provide compensation to employees who contract COVID-19 at work? That will likely depend on the nature and character of an employee’s job and whether the risk of contracting the disease was inherent in the hazards of the employee’s position.

The Act covers an “occupational disease,” which is a disease contracted by a covered employee that arises both “out of” and “in the course of” the employment. The Act explains that an employee is entitled to benefits if the occupational disease “(i) is due to the nature of an employment in which hazards of the occupational disease exist and the covered employee was employed;” or “(ii) has manifestations that are consistent with those known to result from exposure to a biological, chemical, or physical agent that is attributable to the type of employment in which the covered employee was employed.”

Consequently, the disease must arise from the nature or type of the employment and the risks associated with it. An employee must do more than simply show that he or she contracted the disease at work. To constitute a compensable occupational disease, the disease must be “reasonably characterized as due to the general character” of the employee’s line of work. It is not enough to show that the disease was caused by the employee’s specific employment experience.

Therefore, in order for an employee to recover workers’ compensation benefits for contracting COVID-19 during the course of employment, the employee must prove that contracting the disease arose from the general character of his or her job, and was a risk or hazard inherent in that job. There must be something “peculiar” to the duties involved in the employee’s position that make him or her “more susceptible to” contracting the disease than someone “in any other kind of employment.”

To qualify for compensation, an employee must show “a relationship between the particular disease and the ‘nature’ of one’s employment.” For example, an emergency medical technician should have a better chance of recovering benefits than would a general office worker. Of course, the employee must also prove that the disease was incurred as a result of the employment. Some States have amended their Acts to provide that certain workers are presumed to have contracted COVID-19 through their employment.

Even if an injury or disease falls within workers’ compensation coverage, there are exclusions that allow an employee to pursue a general damages claim against the employer. For example, where “a covered employee is injured or killed as a result of the deliberate intent of the employer to injure or kill the covered employee.” That is obviously an extremely difficult showing for an employee to make.

What Happens if a Claim is Not Covered by the Act?

If an employee’s claim is not covered by the Act, that claim is not preempted and the employee is free to pursue litigation.

For example, Maryland’s intermediate appellate court allowed an employee to pursue a negligent hiring retention claim against her employer. There, an employee alleged that a co-worker sexually assaulted her. She reported the assaults to her immediate supervisor, who downplayed her reports, discouraged her from reporting them further, and then ultimately fired her. She then sued her employer, claiming the hotel negligently hired and retained her supervisor. The trial court dismissed the claim, finding it was preempted by the Workers’ Compensation Act. But the appellate court reversed, concluding that the Act did not preempt the claim and therefore the employee was free to pursue her claim through litigation. The point is that if an employee’s claim is not covered by the Workers’ Compensation Act, the employee may try to find redress in court.

How Can You Minimize Risk?

What should an employer do to minimize risk, either of a Workers’ Compensation claim or a more traditional litigation claim brought by an employee -- or a vendor, customer, or other visitor to the place of business? With respect to employees, employers obviously must abide by requirements established by OSHA or state or local regulatory authorities. Moreover, all businesses should follow the “best practices” recommended by the CDC and state and local health authorities. Depending on the business, its number of employees, location, and industry, employers should consider testing and screening of employees, mandating the use of masks and social distancing, and similar safeguards.

Once policies are adopted, the employer should not stop there, but should makes sure those policies are being followed. Compliance is key. Management and supervisors should be trained so they know the policies and protocols and can see they are being followed. Likewise, employees should be trained, so they know what is expected of them to protect themselves and their colleagues.

An employer may also want to consider the use of designated “gatekeepers,” who assume a monitoring role. These persons might be human relations staff, instead of those in a direct supervisory role. In short, employers should take reasonable steps and follow “best practices,” so they can do what is reasonably appropriate to protect their employees. Consulting with experienced employment counsel -- who can help develop policies and best practices tailored to an employer’s specific workplace setting -- is highly recommended.

Brad McCullough represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings. For more information, contact him at at 301-657-0734 or jbmcullough@lerchearly.com.

Marc Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information on what your company should consider when it comes to coronavirus in the workplace, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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