June 8, 2020

By: Jacob Hopkins, Eric M. Lemmer, Esq., and Bridget A. Alzheimer, Esq.

As businesses reopen and employees return to the office, the potential for additional COVID-19 exposure or even infection arising from a workplace interaction becomes more likely by the day. Businesses must consider this situation as a potential worker's compensation issue depending upon precedence or legislation arising out of the COVID-19 crisis. Therefore, business owners should be asking themselves whether an employer will be held liable for an employee if such employee contracts COVID-19 on the job.

OSHA has deemed COVID-19 a recordable illness when a worker is infected on the job. If an employee becomes infected while traveling for work or at work, then the employer would be required to prepare and file appropriate reports with OSHA. Therefore, employers should be prepared to present necessary reports with OSHA for those exposed to the virus at work. An employer's failure to adequately respond to the effects of a pandemic in the workplace provides a basis for a general duty clause violation citation under the OSH Act. To comply with best practices, the employer should implement policies that will result in the "prompt identification and isolation of potentially infectious individuals" according to guidance provided by OSHA. Since each business faces unique challenges, business owners need to customize their responses accordingly.

From the current legal precedence and OSHA regulations, if the duty of care requirements were not breached, then it is unlikely that an employer would be held liable for an employee's damages if such employee contracted COVID-19 on the job. Though OSHA has not issued formal standards or regulations specific to the spread of a pandemic, the general duty clause codified in Section 5(a)(1) of the OSH Act requires employers to provide their employees with a workplace "free from recognized hazards … likely to cause death or serious bodily harm." An employer must uphold this general duty to their employees and make efforts to remove threats once they have been recognized to prevent tort liability from arising under OSHA regulations. Employers should frequently check for updates to CDC and OSHA guidelines and take steps in line with such guidance to establish compliance with the general duty clause further.

From OSHA Section 5(a)(1)-(2), employers are required to eliminate serious recognized hazards from employee workplaces and comply with OSHA occupational safety and health standards. No "over-the-top" precautions are necessary to uphold the requirements of the general duty clause. Employers are encouraged to implement policies that will result in the "prompt identification and isolation of potentially infectious individuals" (World Health Organization, Infection Prevention and Control of Epidemic- and Pandemic-Prone Acute Respiratory Infections in Health Care) to protect the safety of employees.

For employers in industries where the risk of COVID-19 may be higher, (e.g., health care, dentists, laboratories, and airline and travel businesses), actions may include, but are not limited to:

• immediately isolating persons suspected of having COVID-19;
• requesting and encouraging workers to wear face masks; and
• restricting the number of personnel entering isolation areas, such as the room of a patient with suspected COVID-19.

Responding to the H1N1 outbreak in 2009, OSHA issued guidance for protecting employees. However, tort liability was not granted through its guidelines outside of the general duty clause. Similarly, OSHA's current regulations on COVID-19 focus on employer identification and response to the virus, but has not yet addressed the specific topic of tort liability from workplace COVID-19 infection.

In Illinois, the case of Toney Evans v. Walmart, Inc is likely to set a precedent regarding an employer's liability arising from COVID-19 exposure. An employee at an Illinois Walmart contracted COVID-19 at work and later passed away, resulting in a wrongful death lawsuit that potentially could provide insight into an employer's scope of liability and an employee's assumption of risk regarding the contracting the virus in the workplace.

As with the H1N1 outbreak in 2009, OSHA has not issued regulations creating a specific basis for an employer's liability arising from a COVID-19 infection on the job. Instead, the "general duty" clause applies. Employers must continue to provide their employees with a workplace free from recognized hazards, including COVID-19, which OSHA has designated as a reportable illness. However, case precedent and OSHA regulation may change and could cause a higher duty of care to arise. Employers should check in with their legal advisors as the legal landscape continues to change in order to address potential issues proactively.

Since each business faces unique risks and challenges associated with responding to COVID-19, business owners need to carefully plan in advance. If you need assistance with assessing potential liability, attempting to liability waivers or have other legal needs for your business resulting from the current COVID-19 epidemic, please contact us to schedule a consultation.