The most frequently asked pandemic-related questions I get from employers reflect their desire to minimize legal liabilities and the financial burdens associated with them. The pandemic is bringing a surge of typical employment-related lawsuits (ie. discrimination, retaliation, etc.) as well as lawsuits pertaining to unsafe workplaces, employer negligence and wrongful death. Sixty percent of all current cases are among employers with less than five hundred employees, with the highest percent impacting small employers with less than fifty employees.
For employers to defend themselves against negligence and unsafe workplace claims, they will need to show that they acted in good faith to implement and enforce the best safety guidelines available to them at the time, per whatever industry guidelines are applicable to them, which in most cases will be OSHA. Almost by default, OSHA provides employers with a roadmap for building a defense to safety-related claims in the workplace.
Which employers are regulated by OSHA?
In 1970 the Occupational Safety and Health Act was signed into law by President Richard Nixon. It gave the Federal Government authority to set and enforce safety and health standards for most of the country’s workers.
Most private employers are obliged to follow OSHA rules and regulations. Many states, like North and South Carolina, have an “OSHA Approved State-Plan” that goes above and beyond the Federal OSHA guidelines and applies to all employers in both the public and private sectors.
State and Federal EEOC departments complement the efforts of OSHA by providing further guidance to employers about how to enforce safety protocols without breaking other laws, such as those pertaining to discrimination. For example, while OSHA provides guidance on differing quarantine protocols for vaccinated and unvaccinated people, the EEOC provides guidance about how to legally obtain an employee’s vaccination status in compliance with the Americans with Disabilities Act.
OSHA Standards versus Guidance
OSHA distinguishes between “standards” (which are regulatory) versus “guidance”, which are recommendations and best practices. Taking steps to follow both OSHA and Guidance pertaining to COVID-19 will be a solid foundation for a strong defense to workplace safety claims and litigation.
With the exception of OSHA’s COVID-19 Emergency Temporary Standard (ETS) for Healthcare, most of the OSHA Standards relevant to the pandemic have actually been in place long before COVID-19 as you will see in the following examples.
- OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1) specifies the following:
- “Each employer shall furnish to each of his employees’ 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 to his employees.”
2. OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), and, in construction, 29 CFR 1926 Subpart E) requires:
- “A PPE hazard assessment is to be conducted to assess workplace hazards, and that PPE, be provided by the employer and used when necessary”.
3. Section 11(c)of the Occupational Safety and Health Act of 1970, 29 USC 660(c):
- …“prohibits employers from retaliating against employees for exercising a variety of rights guaranteed under the OSH Act, such as filing a safety or health complaint with OSHA, raising a health and safety concern with their employers, participating in an OSHA inspection, or reporting a work-related injury or illness.”
In addition to the Standard’s noted above, OSHA specifies “guidance” related to Covid-19 including the following:
- “It is the duty of employers to protect unvaccinated people and people who are vaccinated but who have disorders that compromise the effectiveness of vaccines, such as immunodeficiency disorders.”
In addition to Federal and State Operated OSHA Approved Plans, employers should consult with their local health department and legal counsel for additional guidance pertaining to their specific geographic location.
Pandemic-Related OSHA Penalties Continue to Rise
Generally, customer and employee complaints can trigger OSHA inspections. While OSHA reaffirmed their commitment to prioritizing their audit and enforcement efforts, the number of complaints that stem from concerns about whether employees are adhering to safety protocols has grown exponentially. By early 2021, OSHA imposed $4,034,288 in fines for COVID-19 related citations. Generally, OSHA fines range from $13, 653 to $136, 532 per violation. In addition, the DOL may seek hefty damages, including reinstatement of employment, lost wages, emotional distress and punitive damages.
Trending high among OSHA complaints are those pertaining to whether employers did proper contact-tracing of symptomatic people, whether they enforced quarantine protocols, whether they instituted safe distancing and masking in the workplace per guidelines, failure to provide protective equipment (such as masks) and retaliation against employees who expressed safety concerns.
Lawsuits By Employees & Their Families Will Determine Best Practices for Preventing Lawsuits
It will be employees and their families who take legal action against employers, via lawsuits or insurance claims, who will ultimately write the “Definitive Book of COVID-19 Best Practices” for the workplace. Insurance companies motivated to protect the assets of themselves and of their clients will be defending employers from disability, workers compensation and other liability claims. Pandemic-related lawsuits will continue to emerge based on laws already in place, such as those pertaining to discrimination and retaliation. As cases make their way through the court system, human resource and legal professionals will dissect the facts, reading both minority and majority judge opinions in search for clues about workplace implications.
What lawsuits are currently trending? An increased number of cases are being filed by people who have not stepped foot in the workplace, but who are related to employees who allege they got sick at work and infected their family members. In such cases, the defense is the same as with most other cases. The employer needs to show that they made diligent attempts to protect their employees. Courts will continue to refer to decades of asbestos-related court cases with similar facts as they weigh in on these increased number of COVID-19 “take home” cases.
The Supreme Court & District Federal Courts Across the Country have Been Ruling on Pandemic Policies Since America was Born!
Although the current pandemic is relatively new, there are already two centuries worth of pandemic-related laws and Supreme Court rulings to defer to that can give us a good indication on how courts are likely to rule in pandemic-related cases.
Courts have already weighed in on a wide range of public health topics from state, federal, employer, employee and individual rights, as well as the relevance of the Constitution’s Tenth Amendment and Commerce Clause with regard to public health responses. Since Colonial times, we have been developing the infrastructure to guide our response to a public health crisis. Courts often have to extrapolate from the writings and letters of our Founding Fathers when assessing constitionality, but such is not the case with regard to the Covid-19 pandemic because they can assess the restrictive, unprecedented protocols the Founding Fathers endorsed and implemented when the country was in it’s infancy stage (See .
The country has worked through pandemics before, and unlike our predecessors, we have the advantage of referring to vast historical precedence. We can make informed guesses about how judges will rule in various cases involving everything from workplace vaccination mandates to employer negligence in protecting employees. The bottom line is that to prevent the costs associated with the rising tide of court cases pertaining to COVID-19, an employer will have to prove that they made efforts to protect the employees.
Read More About Our Founding Father’s Pandemic Response Here:
- George Washington’s response to Smallpox during the Revolutionary War.
- Read about Thomas Jefferson and Benjamin Franklin’s response to Smallpox.
- Founding Father Letters regarding their response to a pandemic from Founder’s Online.
States, Feds, Employee, & Employer Rights- The Tradition of Constitutional Battles
At this time, very few states have implemented laws preventing private businesses from imposing pandemic-related mandates in their workplace. Those that have will more likely than not continue to face legal challenges, resulting in some wins along with many being overturned. Such was the case when a governor banned cruise lines from requiring proof of vaccination from their customers. You can read the Judge’s injunction and legal arguments here.
Where states impose laws that are in conflict with federal laws, the federal laws supersede them as per the Supremacy Clause of the U.S. Constitution and its preemption doctrine, unless the laws are found by courts to be unconstitutional. The Constitutionality of pandemic-related laws will continue to be challenged across the country, but there is enough precedence in many cases to predict the likely outcomes of these.
Building a Defense to COVID-19-Related Claims
Click here to see recent trends in lawsuits, insurance claims and fines to learn what you will have to defend your business against.
The following are general guidelines that will help businesses minimize costs associated with Covid-19 lawsuits pertaining to workplace safety. By following these steps, you will begin building a solid defense to any potential lawsuit or insurance claim related to the Coronavirus.
**Refer to the EEOC, legal counsel and human resource professionals pertaining to guidelines for minimizing other Covid-19 related lawsuits regarding wage and hour law, discrimination in all terms of employment including hiring, retaliation, remote work and leave policies, vaccination policies, etc.
- Review and implement the COVID-19 protocols by your state health department and OSHA.
- Assess risks of transmission in your workplace using data provided by OSHA with regard to ventilation, PPE access, sanitizing, ability to safe distance, etc. Document your assessment.
- If you don’t collect proof of vaccination status ensure all staff follow protocols for unvaccinated people.
- Follow the guidelines for quarantining and contact-tracing as per OSHA (which may be different for vaccinated and unvaccinated people). Refer to EEOC guidelines for collecting vaccination status from employees.
- Vaccination policies should include a warning to employees that they will be subject to prosecution per federal and state law if they are found to have produced fake vaccination documentation.
- Post a Notice encouraging third parties who may interact with your employees to follow protocols. (This will show your diligent attempt to protect them).
- Provide current and newly-hired staff and supervisors with training about your protocols, how to prevent the spread of COVID-19, where to get tested and where to get vaccinated.
- Have employees sign the training or write an acknowledgement in an email that they read the information.
- Training documentation should include employee consequences for not following protocols. Ie) “Failure to adhere to these safety protocols will be subject to disciplinary action up to termination of employment”.
- Include the need for employees not to come to work if they have symptoms.
- Hold staff and supervisors accountable when they don’t follow the safety protocols.
- Save contemporaneous notes on verbal retraining and copies of signed corrective actions.
- Train supervisors to abstain from retaliation or behavior that appears retaliatory towards employees for COVID-19 (ie. the costs associated with the use of PTO due to quarantine, the costs to coworkers for increased premiums from hospitalizations, etc.)
- In general, toxic supervisors are a liabilty for so many reasons including their risk of putting your company in legal jeapardy and preventable insurance claims.
- Review, revise, implement the following policies:
- Grievance procedure and Anti-Retaliation policies.
- Harassment Policies- Prevent the harassment of employees COVID-19 status, vaccination status, mask-status or underlying conditions precluding people from doing so.
- Employee Code of Conduct – Ensure that the need to adhere to all safety protocols is specified.
- Paid Time Off Policies – Ensure they don’t inadvertantly require employees to come to work sick.
- Remote-Work Policies – Optimal flexibilty will prove that you don’t encourage people to come to work if they are required to quarantine.
- If you have an Employee Handbook and / or your COVID-19 policies will be temporary, you can send out updated memos that employees sign.
- Revise Employee Handbook to include the following disclaimer: “Employees are responsible for adhering to all safety protocols. These protocols may change occasionally. Updates will be in the form of memo’s, emails, and/or training documentation”.
- Assess and revise job descriptions.
- Include “the need to adhere to safety protocols” as an essential job function.
- If applicable, include any vaccination requirements.
- Follow EEOC guidelines for guidance regarding pre-employment interview questions.
- During the hiring process, an employer cannot ask whether or not the candidate was vaccinated until after an offer of employment has been made.
- Employers can (and should) tell the the candidate any COVID-19 related requirements for the job, ie. masks required, vaccine required unless their is a an approved accomodation, etc. Realistic job previews save the company and the candidates time by lettering the candidate take themselves our of the costly hiring process.
- Follow EEOC guidelines for reasonable accommodations when granting employees exceptions from safety protocols. Document your assessment in an “Reasonable Accomodation Assessment”.
- Refer to EEOC guidelines for determining and documenting whether accomodating employees would pose a “direct threat” to your clients, coworkers or themselves.
- For example,this may be the case if employee’s essential job function is to provide care to people with intellectual impairments and underlying health conditions that may compromise the effectiveness of their own vaccinations or ability to comply with mask wearing.
- If you can provide a reasonable accommodation, write a reasonable accomodation assessment that includes the following:
- The specific safety protocols necessary for the employee to follow.
- A future date to meet with the employee to discuss the extent to whether the accomodation remains reasonable. (Criteria may change based on changes in your operations, budgets, etc.).
- Include a warning to employees that failure to adhere to the protocols and accomodations will result in “disciplinary action up to termination of employment”.
- Refer to EEOC guidelines for determining and documenting whether accomodating employees would pose a “direct threat” to your clients, coworkers or themselves.
- If you cannot give an employee an accomodation because it will cause undue hardship to the business (per EEOC guidelines), consult with counsel and a human resources professional for guidance on legally terminating employment.
- State and federal COVID-19 guidance changes in response to transmission rates in your community, new variants and subsequent research. Update protocols accordingly and repeat the steps above!
Managing legal risks during the COVID-19 pandemic is not unlike managing risks outside of the pandemic. We have the resources, history, and research at our disposal to guide strategies for preventing most COVID-19 related lawsuits and insurance claims, and when that is not possible, we can at least decrease the costs associated with defending them.
©Denise Scotti-Smith 2021. All Rights Reserved
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