A handful of states are reopening for business following coronavirus-triggered lockdowns, raising two compelling questions: Must employers ensure the workplace is safe? And will they be held liable if employees contract the virus?
The short answer is that while health care providers must follow federal safety guidelines to guard against contagion, other businesses are not obligated to do so, leaving it to states and localities to set standards, experts say. And sick employees who seek damages, typically through worker’s compensation, must prove that they contracted the virus at work – an especially thorny challenge.
“It’s often an uphill battle,” for workers, says Jonathan Segal, an employment lawyer who represents companies at Duane Morris law firm in Philadelphia.
States such as Georgia, South Carolina, Tennessee and Alaska have at least partly lifted shutdown orders in recent days. In Georgia, gyms, bowling alleys, barbers and massage therapists were allowed to open Friday and restaurants were allowed to open Monday. The Occupational Safety and Health Administration requires employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. To meet that standard, OSHA is advising businesses to follow Center for Disease Control guidelines, including instructing employees to keep six feet away from co-workers or customers, taking temperatures, disinfecting surfaces and providing face masks, hand sanitizers and barriers when appropriate.
“We’re seeing employers do that to mitigate that risk,” says Christina Meddin, a labor lawyer at Seyfarth Shaw in Atlanta who is advising business clients to follow the guidelines.
The more safeguards a company adopts, “The better your argument is going to be” if there’s a challenge by OSHA or a lawsuit, says Jennifer Scharf, a health law attorney at the Coppola Firm in Amherst, New York.