Employer Liability for COVID-19

With the advent of COVID-19, employers are not surprisingly reviewing their obligations to employees to prevent exposure and infection with this new viral agent. Indeed, they should. Although there are no specific Ohio laws or OSHA standards covering COVID-19, various other state and federal statutes that impose a duty on employers to provide a safe workplace could be implicated to require employers to take preventive measures to assure their employees do not contract COVID-19 at work or to impose liability in the event an employee does contract COVID-19 while at work. Can a business be liable for an employee contracting COVID-19 at the workplace? Can a business be liable if an employee contracted COVID-19 at work and infects a family member? These are questions that are likely to arise. However vigilant attention to employee safety and legal preparedness can minimize employees’ risk of infection and a business’s liability.

Ohio Law

Ohio imposes a duty on employers (i) to provide a place of employment that is safe, (ii) to adopt and use methods and processes reasonably adequate to render their place of employment safe, (iii) and to do “every other thing reasonably necessary to protect the life, health, safety, and welfare of [its] employees or frequenters.” R.C. 4101.12. This statute has been relied upon in determining liability for employee illnesses due to airborne particulates such as asbestos and composite materials in manufacturing that cause allergies and can similarly apply where an employer fails to take reasonable measures to avoid COVID-19 contamination in the workplace. An employer may be subject to claims for the failure to provide a safe workplace whether that be through claims brought before the Industrial Commission (workers compensation) or via common law claims for intentional tort and emotional distress. The difficulty for an employee bringing such a claim that he contracted COVID-19 at work is proving it. That alone may be too significant a hurdle and bar most claims, other than perhaps from healthcare workers.

Federal Law

The Occupational Safety and Health Act (OSHA) also requires employers to furnish to each worker “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.” 29 USC 654.

Although OSHA citations for a violation of the General Duty Clause are not as common as those issued for specific rules violation, OSHA does issue them. In order to issue a citation under the General Duty Clause, OSHA must prove:

1. The employer failed to keep the workplace free of a hazard to which its employees were exposed;.
2. The hazard was known by the employer;
3. The hazard was causing or was likely to cause death or serious physical harm;
4. A feasible and useful method to correct the hazard was available.

Under OSHA, an injury or illness is considered to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” There is a presumption that an injury or illness is work-related if it results from events or exposures occurring in the work environment, unless one of several enumerated exceptions specifically applies. Importantly, an injury or illness is not work-related if it involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.

For those employers with a traveling workforce, they need to be especially on guard. An illness that occurs while an employee is on travel status will be considered work-related if at the time the employee contacted the illness the employee was engaged in work activities “in the interest of the employer.” OSHA lists the following examples of such activities: (i) travel to and from customer contacts; (ii) conducting job tasks, and (iii) entertaining or being entertained to transact, discuss, or promote business at the direction of the employer.

Again, proof of whether an employee contracted COVID-19 at work presents a very high hurdle.

What Measures Can Employers Take to Avoid or Minimize Liability?

Employers should take those reasonable measures to protect their employees from exposure and infection of COVID-19 which may include the following:

• Appointment of a cross-functional emergency response team
• Implementation of a policy addressing infectious disease preparation and response including attendance, pay, communications, and work at home concerns including information security control processes
• Compliance with all federal, state and local orders or recommendations related to COVID-19
• Prioritize regular hygiene and educate employees
• Send sick employees home
• Cessation of all non-essential services
• Require those employees that can work from home to do so
• Restriction of travel by employees and require video-conferencing
• Routine environmental cleaning including sanitizing surfaces and fogging with adequate antiviral compounds
• Establish screening policies for visitors

What is an Employer’s Liability With Respect to Employees Working From Home?

Now that a significant number of employees have substituted their homes for their workplaces, additional questions arise regarding the scope of the workplace for purposes of fulfilling both the duty to maintain safety of the employees and avoiding liability for failing to do so.

Under Ohio law, an employee’s right to participate in the workers compensation system depends on the totality of circumstances surrounding the injury or illness which include (1) the proximity of the scene of the injury to the place of employment, (2) the degree of control the employer had over the scene of the injury, and (3) the benefit the employer received from the injured employee’s presence at the scene of the injury. Furthermore, an employee need not necessarily be injured in the actual performance of work for his employer – it is sufficient if he is injured in an activity consistent with his employment and which in some logical manner pertains to or is incidental to his employment.

According to OSHA, injuries and illnesses that occur while an employee is working at home will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting. Again OSHA lists some examples: (i) if an employee drops a box of work documents and injures his or her foot, the case is considered work-related, (ii) if an employee’s fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment, the injury is considered work-related, (iii) if an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related; (iv) if an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.

With respect to employee “home offices” OSHA does not conduct inspections of such worksites. Nor will it hold employers liable for employee home offices and does not require or expect employers to inspect the home offices of their employees. For other home-based worksites, especially where there may be manufacturing activities, OSHA will conduct inspections upon receipt of a complaint that indicates that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists which may, or has, resulted in a work related significant injury or fatality. Any such inspection in an employee’s home will be limited to the employee’s work activities. OSHA does not apply to an employee’s house or furnishings.

RECORDING AND REPORTING OBLIGATIONS

OSHA requires all employers with ten or more employees to record certain work-related injuries or illnesses. Employers in low risk industries such as daycare, motor vehicle dealers, retail sales and certain professionals are exempt. This record is known as the OSHA 300 Log. Employers who are required, because of their size or industry classification, to keep records of work-related injuries and illnesses, are responsible for keeping such records, regardless of whether the injuries occur in the factory, in a home office, or elsewhere, as long as they are work-related, and meet the recordability criteria of 29 CFR Part 1904. Even though OSHA may not inspect home worksites, an employer may still be subject to recording and reporting requirements.

Employers are required to report an illness or injury that is work-related and (i) requires medical treatment greater than first-aid administered on-site, (ii) subsequently requires restricted duty, (iii) treatment by a health provider, (iv) lost days from work, or (v) loss of consciousness.

With respect to COVID-19, all such incidents must be recorded if the employer reasonably believes an employee was exposed at work and a laboratory or health provider diagnoses the employee with COVID-19. There are no presumptions that an employee contracted it at work.

Even if an employer is exempt from recording, an employer is required to report the work-related death of an employee within eight hours or in-patient hospitalization within 24 hours.

If you have any questions relating to your business’s efforts to combat COVID-19’s impact in its workplace please call Maribeth Meluch or any of our partners in the Employment Practice group at Isaac Wiles Law.