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EMPLOYMENT and COVID-19: Do employers have a duty to protect their workers from getting Covid-19?

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For those who are working from home due to the Coronavirus and its related stay-at-home orders, there has been quite an adjustment to the day-to-day routine. My office moved most of its staff home to work, providing laptops and internet phones to make sure the firm keeps running smoothly. But for those who are required leave home and go to work, there has been some adjusting as well. Some employees are facing the fear of exposure to the Coronavirus while trying to maintain a living. How can employees who are potentially exposed to the virus each day work without fear of contracting it? Do employers owe their employees a duty to protect these essential workers from the virus?

There is plenty of information online about how employers should behave when it comes to protecting their employees from contracting the virus. For instance, employers have the following CDC guidelines for practices prior to and during their work shift:

Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.[1]
And, the Occupational Safety and Health Administration (OSHA) provides standards and directives that may apply to worker exposure to the Coronavirus. The two most relevant requirements are:

§
OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I)[2], which require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

o
When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134)[3].

§
The General Duty Clause, Section 5(a)(1)[4] of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which 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.”[5]

OSHA local offices[6] can be contacted with questions or concerns, and you can also set up an OSHCON – Occupational Safety and Health Consultation – through the Texas Department of Insurance.[7]

So, that covers what employers should be doing. But what do they have a legal duty to do? There is a general duty to provide a workplace free from known hazards that are likely to cause serious injury or death to employees. If after assessing the workplace, your employer determines there are hazards present or likely to be present, necessitating the use of personal protective equipment or PPE, then your employer is required to equip its employees with PPE wherever it is necessary by reasons of hazards of processes or environment.

There are also duties related to record keeping. OSHA’s record keeping requirements[8] require certain work-related injuries or illnesses to be recorded. If an employee becomes ill due to the Coronavirus, and this illness resulted from performing work-related duties, then it can be a recordable illness. The following three criteria would also need to apply:

1.
The case is a confirmed case of COVID-19;
2.
The case is work-related (as defined by 29 CFR 1904.5)[9]; and
3.
The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7, available here: https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7
It should be noted that OSHA excludes self-employed individuals, churches, federal and state governments and their political subdivisions, businesses regulated by different federal statutes (like nuclear power companies), domestic services employers, businesses that don’t engage in interstate commerce, and farms that have only immediate family members as employees.
While OSHA has state plans, Texas is not a “state-plan” state; we are governed by the federal rules, which govern private businesses and nonprofits. So, while Texans are covered under OSHA’s employer duty as reviewed above, there is also a common law duty of care owed by employers to employees.
On April 6 th, the first case for alleged wrongful death due to an employer’s “willful and wanton” conduct in not following public safety protocols was filed in Illinois. The complaint alleges that Walmart should be held liable for the wrongful death of one of its employees, Wando Evans, because it knew other employees were showing signs of sickness, was not adequately training employees, was not adequately sterilizing, was not adequately providing distancing or personal protective equipment, did not have effective policies and procedures for addressing employees who became sick or showed signs of potential illness, did not adequately sanitize the store’s public or restricted areas, or take other appropriate and reasonable protective measures suggested by the CDC, OSHA, or state and local health departments.[10]
The complaint states that “At all relevant times, [Walmart] owed [Evans] a duty to exercise reasonable care in keeping the store in a safe and healthy environment and, in particular, to protect employees, customers and other individuals within the store from contracting COVID-19 when it knew or should have known that individuals at the store were at a very high risk of infection and exposure due to the high volume of individuals present at and circulating throughout the store on a daily basis”.

Workers in the healthcare, death-care, laboratory, and airline industries are identified by OSHA to be at a higher risk for exposure to the novel Coronavirus. Of course, grocery store employees, delivery drivers, convenience store employees, and similarly-employed workers are at risk as well. While Texas doesn’t require businesses to have worker’s compensation, if an employer does have it, and if an employee dies due to the employer’s gross negligence, then the employee may be able to sue for exemplary damages.[11] If an employer is a nonsubscriber, meaning they do not have worker’s compensation insurance, then an employee who tests positive for the virus will probably not be covered under a work-injury benefit plan. Even if that employee says they were infected by a previously-diagnosed coworker, it is difficult to rule out the chance that this employee was infected outside of the workplace.

Texas may see some of its own wrongful death or gross negligence claims brought by employees or their estates. This is a new landscape we are exploring. I’m watching for any new cases related to workplace exposure to Coronavirus, to prepare myself to be able to fight for those in Texas in similar situations. If you have fallen ill due to exposure to the Coronavirus while on the job, you will need to gather as much evidence in your favor before speaking with an attorney, but we are happy to provide a free consultation in the meantime. If you find yourself needing the assistance of an attorney, please feel free to contact the Law Offices of Alex R. Hernandez, Jr.

Alex R. Hernandez, Jr.

[1] https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html

[2] https://www.osha.gov/enforcement/directives/cpl-02-01-050

[3] https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134

[4] https://www.osha.gov/laws-regs/oshact/section5-duties

[5] https://www.osha.gov/SLTC/covid-19/standards.html

[6] https://www.osha.gov/contactus/bystate/TX/areaoffice

[7] https://www.tdi.texas.gov/oshcon/index.html

[8] https://www.osha.gov/laws-regs/regulations/standardnumber/1904

[9] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5

[10] https://www.jdsupra.com/legalnews/update-can-employees-sue-their-employer-23500/

[11] https://statutes.capitol.texas.gov/Docs/LA/htm/LA.408.htm

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