May 28 2020
Categories: HR Solutions
May 28 2020
Categories: HR Solutions
Your business faces potential liability from Clients, Customers, and Employees in the wake of COVID-19.
How do you manage and protect yourself while ensuring a safe and healthy workplace?
Create your written COVID-19 Exposure Prevention Response Plan.
Training and record keeping are key factors in determining the outcome of any potential liability allegations.
“Estate of Illinois worker who died from COVID-19 sues Walmart,” Business Insurance 4/8/2020
“COVID-19 lawsuit takes on McDonald’s like it was a rowdy bar” – Business Insurance 5/26/2020
Employees, Clients, Customers
“Debate over business liability in pandemic turns to OSHA regulation, CDC guidance,” Insurance Journal 5/13/2020
How do you manage this risk? How do you protect your employees, customers/clients, and business?
OSHA Guidance to assist in assessing workplace and creating your response plan:
CDC Cleaning & Disinfection Decision Tool
The OSHA General Duty Clause states that 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 likely to cause death or serious physical harm to his employees; and shall comply with occupational safety and health standards promulgated under the OSHA Act; and each employee shall comply with occupational safety and health standards and all rules, regulation, and orders issued pursuant to the Act which are applicable to his own actions and conduct.
Is there a requirement to notify OSHA, CDC, or state/local authorities regarding a positive COVID-19 case in the workplace?
The answer to this may vary by state or local authorities. We advise consultation with those authorities depending on where you do business. Typically, those authorities will notify the CDC.
According to OSHA, COVID-19 would be reportable, “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.”
Given this general definition of “recordable” and the lack of conclusive evidence proving where and how it was contracted, it will be difficult for employers to determine whether a positive COVID-19 case is connected to the workplace. However, documenting the steps taken to reduce the risk of COVID-19 in the workplace, a written pandemic response plan with employee training, and following CDC Guidelines may reduce the opportunity to connect a COVID-19 diagnosis with the workplace.
“OSHA Recordable does not mean it is Workers Compensation “Compensable” – these are two separate issues. Coronavirus may be a humankind exposure rather than one peculiar to most employments. Contracting the virus at work is not enough to trigger the assertion that it is a compensable occupational illness. To be occupational and compensable requires something peculiar about the work that increases the likelihood of getting sick.”  – Chris Boggs, Source:https://www.independentagent.com/vu/vu/Insurance/Commercial-Lines/Workers-Compensation/BoggsCoronavirus.aspx
An interesting “work related” claims example, outside of healthcare or first responders, would be Smithfield Meat Packing. These COVID-19 deaths and diagnoses, may meet the definition of “Peculiar” to their work, therefore may be compensable.
Keep in mind that it is sometimes difficult to link exposure to COVID-19 to any one place or source. Nevertheless, employers should take all possible steps to maintain a safe workplace, including following CDC guidance.
General Guidance to Consider:
Written Employer Response Plan – includes: