Written by Donald A. Promnitz
As essential workers continue to clock in during the pandemic, it should come as no surprise that many of them are facing the reality of Covid-infected coworkers — or the legal ramifications that come with it.
It’s left employers with the need to protect their employees and do everything they can to ensure the safety of their staff by creating the 2nd safest place in that worker’s life — with home being the only place safer. Otherwise, they will not only risk the safety of their employees, but they could also face workers’ compensation payments and even litigation.
Early on in the pandemic, Gov. Newsom had issued a directive that any essential employee infected with Covid-19 was to be treated as a work-related injury, thus covering them for workers’ compensation. Meanwhile, concerns have risen over the fear of lawsuits in the event that employees contract the virus.
Mark Kruthers, a shareholding attorney for the Dowling Aaron law firm in Fresno, pointed out that an issue with Covid liability is the simple reality that it’s hard to trace the virus. How an employee came to be infected may in many cases never be known.
“I think that probably highlights one of the problems with the respect to any Covid litigation that may develop,” Kruthers said. “Whether it may be employer/employee, business/customer — whatever the case may be — is how can someone prove that they contracted the virus from a certain source or because of a certain reason?”
The misconduct factor
However, even with liability protection, there are still cases in which a company can find itself embedded in a lawsuit. In the case of “serious and willful misconduct,” with an intentional act of negligence or carelessness on the part of the business owners, damages could potentially be pursued.
This was the case for the Central Valley Meat Co. in Hanford, which is currently facing a class-action lawsuit. Allegations in court documents include the company encouraging employees to come into work, even when infected. By April, it is alleged that 161 of its 750 employees tested positive for Covid-19. Cases like this, Kruthers explained, would fall into serious and willful misconduct.
Kruthers is not involved with the Central Valley Meat lawsuit.
According to The San Francisco Chronicle, it’s been enough of a concern for many companies to make their employees sign waivers relieving them of any legal liability. Liability protection has also been a priority for Republicans in the U.S. Senate, who are hoping to pass it as part of the next relief package, though it’s met stiff opposition by Democrats.
The National Law Review, meanwhile, added that the HEALS Act currently under debate in Congress gives protection for businesses from misconduct claims unless evidence can be presented by plaintiffs.
“The legislation, if enacted, would provide a monumental challenge for plaintiffs alleging coronavirus-related injury,” wrote Eric J. Robbie for the Review. “In short, it provides businesses, schools and other institutions with favorable presumptions of good faith compliance with safety standards and guidance, and requires plaintiffs to prove gross negligence or willful misconduct… to establish liability.”
To discourage these suits, the HEALS Act adds that a claim without merit could face punitive damages and civil penalties of up to $50,000. The bill also limits damages to only economic ones, though punitive damages can also be added if deliberate wrongdoing has been demonstrated.
An employee was infected. Now what?
Though not necessarily inevitable, there is still the high possibility that an employee can be infected by Covid-19. In such cases, there are ways for a company to protect itself from allegations of misconduct and — more importantly — protect its employees.
For their part, public health sites like the one for the Fresno County have a full set of instructions on its website, including employer handbook and workplace outbreak guidance.
The state guidelines advise employers to designate an infection prevention coordinator for each office to manage Covid-related issues for its employees. The outbreak management section also urges employers to not only keep all symptomatic employees home, but to ensure that sick leave policies are generous and flexible enough to enable employees who are sick to stay home without penalty.
For a symptomatic positive employee, CDC guidelines advise a 72-hour wait after recovery before returning to the workplace.
Documentation of all steps taken is also highly encouraged as a means of showing that the company was in compliance with all guidelines.
According to the Fresno County Department of Public Health Director David Pomaville, the best protection against damages is to take all possible steps to keep employees from ever contracting Covid-19 in the first place and — if they do — demonstrating the measures taken for prevention.
“We know just having someone who contracts the virus at a business, it may be of no fault of the business themselves,” Pomaville said. “But they certainly need to be able to defend themselves and be able to show, ‘these are the reasonable steps that we’ve taken to make sure that our workforce remains safe.”
Dr. Rais Vohra, interim health officer for Fresno County, explained that it’s a public effort, with businesses needing to play their part for the good of their community.
“Keeping people safe is in everyone’s best interest,” Vohra said. “This is basically humans vs. viruses, and it should be obvious which team we’re on.”
Instruction can also be found for some specific areas of work, such as schools and restaurants.