Brownstein Client Alert, June 17, 2020
As businesses begin to reopen nationwide, they should take note of a recently emerging litigation trend: lawsuits against employers for allegedly insufficient COVID-19 protocols and safety measures that are claimed to have imperiled employees and their family members, as well as the general public. These derivative exposure claims differ from direct exposure claims in that the family members are asserting secondhand exposure to the coronavirus through the employee.
Three such cases have received a significant amount of media coverage—one in New York against Amazon, one in Illinois against McDonald’s in which injunction proceedings are currently pending, and another filed against McDonald’s on June 16 in Oakland, California. In the New York case, Amazon employees sued the online retailer alleging that their working conditions put them and their family members at risk, including one family member who ultimately died from the derivative exposure. The allegations against McDonald’s are similar. These cases are backed by various social justice organizations, such as Fight for $15, as well as unions.
Among other bases, several of these cases are brought on a legal theory unique in this context—“public nuisance.” Essentially, the plaintiffs are arguing that the steps taken by the employers to prevent the spread of the coronavirus were inadequate, thus creating a public nuisance. In these cases, the plaintiffs primarily seek injunctive relief—e.g., to require the companies to comply with public health requirements and guidance and take more action to protect employees—rather than seeking significant monetary damages.
One reason the cases are brought under this theory is to avoid the exclusive remedy of workers’ compensation. With limited exceptions, employees are barred from suing their employer in court for damages resulting from workplace injuries or illness, but must instead seek redress through the workers’ compensation system. The plaintiffs’ framing of the issue as a “public nuisance” claim arguably takes it outside of the workers’ compensation system. Even if workers’ compensation exclusivity applies to the employees’ claims, though, it may not preclude claims by affected family members or other third parties, such as housemates of employees exposed to the coronavirus at the workplace; whether it does preclude such third-party claims would be determined on a state-by-state basis under the applicable workers’ compensation scheme.
Employers also have argued, with mixed success, that issues such as these fall within the primary jurisdiction of the Occupational Safety and Health Administration (OSHA) or the U.S. Health and Human Services Department, and should not proceed in court. The success of such an argument can depend, in part, on whether the case is pending in state or federal court.
Cases are proceeding in other jurisdictions under a negligence/wrongful death theory, such as cases brought against Tyson Foods in Texas. Those cases will hinge on whether employers owe a duty to third parties like employees’ family members. Different states impose varying standards of care upon employers with respect to the duty to protect third parties from foreseeable risks, such as secondhand exposure to the coronavirus.
Whether these pending cases will open the floodgates to litigation against employers remains to be seen. In the meantime, what can employers do to protect themselves?
Preliminarily, employers should familiarize themselves with federal, state and local requirements and guidance with respect to preventive measures, as well as industry “best practices.” Employers should implement and document compliant protocols (including training for employees and wellness screenings), and regularly update those measures as the law and recommendations change. These include protocols for employees who are symptomatic, have tested positive or otherwise may have been exposed to the coronavirus. Policies also should include information for employees on how to limit secondhand exposure (e.g., with respect to housemates and family members). Such measures include self-quarantining in a separate room, limiting physical contact, wearing a mask, wiping down any surfaces touched in shared rooms (such as a bathroom) and having others prepare the affected individual’s food to avoid contaminating a shared kitchen.
When an employee is diagnosed with or suspected of having COVID-19, in addition to excluding the employee from the premises immediately, the employer should promptly conduct an assessment of the potential work-relatedness of the infection or suspected infection. (Click here for a link to our prior article on this issue.) This is essential not just to refute third-party claims of liability, but also to obtain information needed to satisfy OSHA reporting requirements. The employer should immediately trace the contact the affected employee may have had recently with other employees (as well as customers, visitors, etc.), and take appropriate action with respect to those individuals, which may include requesting that they get tested and reminding them about how to limit secondhand exposure.
Employees also should be encouraged to promptly report any concerns or suggestions they have regarding coronavirus-related safety measures in the workplace, and a procedure should be in place to promptly assess and address those concerns and suggestions as appropriate. Often, it's the individuals “in the trenches” who have the most practical ideas for safety measures.
By implementing proactive preventive measures, and taking swift and appropriate action where there is a confirmed or suspected case of COVID-19 in the workplace, employers can mitigate their potential liability for secondhand exposure.
Information is changing daily and some of the content included in this alert may have changed or been updated since publication.
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The information in this article is accurate as of the publication date. Because this law in this area is changing rapidly, and articles are not automatically updated, continued accuracy cannot be guaranteed.