The implications of the COVID- 19 pandemic on the workplace have without a doubt been catastrophic. As we enter a phase of reopening and returning to offices, stores, and any other place of business, there are a lot of considerations to be made by both employers and employees. Though there are talks of both state and federal laws being put in place to protect employer liability for Covid- 19 related lawsuits, no law has officially been signed that limits employer liability. There are however, existing laws in place that protect employees who feel they are not being provided a safe work environment. Currently, “Walmart, Safeway, Tyson Foods and some health care facilities have been sued for gross negligence and wrongful death since the coronavirus pandemic began unfolding in March. Employees’ families allege that the companies failed to protect workers from the deadly virus and should compensate their family members as a result. Workers who survived the virus also are suing to have medical bills, future earnings and other damages paid out, which could last a lifetime because of the potential long-term consequences of the virus, including damage to the lungs and other organs.”  

While there are no laws in place yet to protect employers from liability, there are ways to limit the possibility of future lawsuits. This includes having safety protocols and plans in place before employees are allowed to return to work. In New Jersey there is a “policy of requiring face coverings in indoor spaces that are accessible to members of the public, such as retail, recreational, and entertainment businesses, areas of government buildings open to the public, and mass transit buses, trains, and stations, again with exceptions for health reasons and children under two.” This should be considered when evaluating PPE required for employees returning to their workplace.  

Before allowing employees to return to work an employer should: 

1. Make a Plan 

This can include making a timeline that lays out who can return to work and when, making a contingency plan that includes procedures in case of an employee who is COVID- 19 positive or who is displaying symptoms, and consulting any unions that your employees may be a part of.  

There should also be a plan in place that addresses the possibility of returning to working fully remote. As we have seen, the virus is unpredictable, and having a plan ready in this case will alleviate the stress your employees have about the status of their job if another lockdown were to occur. Remember that working remotely, especially during a pandemic, can be stressful for all parties. It is important to have clear expectations and a flexible schedule that takes into account the added stresses that may come with working from home.  

2. Consider Employee Needs 

This includes communicating directly with employees about their individual situations, evaluating whether or not they can effectively work remotely, taking into account any scheduling conflicts, and discussing transportation needs that involve use of public transportation that would increase employee and workplace exposure. 

3. Create Safety Policies and Procedures 

These are very important to limiting future liability and can include reviewing any local health mandates, ensuring that office areas are properly cleaned, educating employees on best hygiene and exposure protocols, implementing social distancing, restricting employee travel for both work and personal reasons, and having procedures in place if an employee wants to file a complaint internally. Other policies to consider include COVID- 19 testing, hallway procedures to avoid close interactions, staggered scheduling, and a way to request accommodations due to COVID- 19 concerns.  

A good resource for Model Workplace COVID- 19 policies is from Employers Association of New Jersey: https://www.eanj.org/model-covid-19-policy 

Now, even if you taken all of the precautions and put protocols in place, it is still possible that you or an employee could get sick. It happens. However, without them the possibility and risk for yourself becomes much greater. Taking these safety measures is also a way to avoid possible liability in the case of an employee does contract COVID- 19. Because of this, it is important that both employers and employees are aware of laws in place that protect them. 

Some of the laws in place to protect employees:  

• The OSH Act General Duty Clause that requires employers to provide workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If an employee has a COVID- 19 related concern that pertains to this act and has specific examples, they can file a complaint with the Occupational Safety and Health Administration. This act also has an anti-retaliatory clause that protects the employee from being fired or demoted if they file a complaint.  
• If two or more employees have COVID- 19 concerns they can refuse to come to work and are essentially on strike. They are therefore legally allowed to do this and the employer can replace, but not legally fire their striking employees  
• If you fire an employee for walking out due to safety concerns, they can file a complaint with the National Labor Relations Board. This law applies to private sector workers regardless of a union membership  
• The Labor Management Relations Act also “states that if an employee walks off the job ‘because of abnormally dangerous conditions,’ they’re protected from being fired.”  
• At private businesses with less than 500 employees, an employee with COVID- 19, symptoms, or under a mandatory quarantine can take 2 weeks of fully paid sick leave and cannot be made to physically go into work .
• For employees with conditions that put them at higher risk for COVID- 19 the Americans with Disabilities Act requires employers “to try and provide reasonable accommodations for all employees with a disability who request one.”  
• The Equal Employment Opportunity Commission (EEOC) says that employers can test employees before they reenter the workplace, but these tests must be reliable and fair. An employer can also take the temperatures of workers, but must keep all information confidential. 

Companies can greatly reduce their liability in the workplace with well-thought out safety precautions, policies and informed employees.

The McHattie Law Firm continues to follow COVID-19 developments as they impact the workplace and will provide frequent updates on those developments. For assistance addressing issues in your workplace, feel free to contact us. 

This blog is for informational purposes only.  It does not constitute legal advice and may not be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction