Covid-19 Risk/Liability - Protect the Future of Your Business

Protecting the Future of Your Business

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.

Potential Allegations and Liability Resulting from COVID-19

“Estate of Illinois worker who died from COVID-19 sues Walmart,” Business Insurance 4/8/2020

• Lawsuit filed says the store was not properly cleaned and employees were not given masks, gloves, antibacterial wipes or other protective equipment.
• Complaint alleges guidelines were not followed issued by the Centers for Disease Control and Prevention and the U.S. Department of Labor for maintaining safe workplaces, such as implementing social distancing.
• Tony Kalogerakos, a lawyer for the estate states “The Centers for Disease Control has designated Walmart stores as “high-volume retailers,” making them responsible for taking additional precautions to protect employees and customers from the spread of COVID-19.”

“COVID-19 lawsuit takes on McDonald’s like it was a rowdy bar” – Business Insurance 5/26/2020

• Typically, workplace safety is a matter for the federal Occupational Safety and Health Administration (OSHA), which has the authority to inspect businesses and issue citations. By focusing on community health, the lawsuit attempts to move outside OSHA’s jurisdiction and into the courts.
• A similar public nuisance lawsuit filed in April against a Smithfield Foods, Inc. meat processing plant in Missouri was dismissed because the judge said workplace safety was a matter for OSHA.
• The Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce business group, has warned the pandemic could prompt a flood of “abusive” lawsuits, and cited the McDonald’s public nuisance case in a call with reporters this week.
• “The danger is one case survives and like moths to light you’ll see cases all over the place,” said Michelle Richards, a law professor at the University of Detroit Mercy.

The Future of Liability

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

• CS316485B

Employer Based Regulatory Obligations:

OSHA

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.

OSHA Recordable

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.

Workers Compensation…is it compensable?

“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.” [1] – 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.

Protecting your Employees, Clients/Customers, and Your Business

Employees:
Exposure Prevention

General Guidance to Consider:

• Social distancing
• Separate workstations – 6′ apart
• Staggered work shifts, breaks and lunches
• Assigned doors for entrance/exit
• PPE (masks, gloves, face shields)
• Hand sanitizer and EPA approved cleaning supplies
• Bleach/water mix with rags to clean surfaces

Written Employer Response Plan – includes:

• COVID-19 Assessment and Control Plan
• Employee Training with signed Acknowledgement of Training

Points to Consider

• All workers compensation claims, or notice of claims, must be submitted and coverage will be determined by the Insurer.
• A majority of group health plans are covering all COVID-19 testing and treatment without out of pocket costs to the employee.
• Families First Coronavirus Response Act (FFCRA) – Sick Leave Pay