By John Rogers
As employers struggle to deal with the “new normal” of trying to maintain their business operations in a time of pandemic, there’s at least one legal issue that continues to gnaw at owners and managers and cause no little stress in the board room. Many businesses can’t function without their employees — at least some of them — being physically on-site.
Most service and hospitality companies, along with the manufacturing, agriculture, food production and construction industries — and many others — have to have their people on the job to stay in business.
But therein lies the rub.
What if an employee is required to come to work and, while there, contracts COVID-19? Can the employer be held liable? In Utah — and across the nation — employers, employees, lawmakers, attorneys and rights organizations are trying to address this dilemma.
Utah companies have already seen a number of lawsuits stemming from the pandemic.
As far back as May, a woman who contracted the coronavirus sued her employer, arguing the American Fork-based company did not take proper precautions to protect her against COVID-19. Juana Victoria Flores filed the lawsuit against Built Bar, which manufactures and distributes nutritional supplements. Flores said she emailed the Built Bar human resources department in early April, concerned about the number of people on the production line who were sick. She recommended a professional company be brought in to clean up or fumigate the building. Flores developed a cough the next day and was diagnosed with the coronavirus less than a week later, her lawsuit said.
Flores said she never received a response to her email. Her lawsuit claims Built Bar “knowingly, intentionally and recklessly” exposed its employees to the coronavirus and allegedly refused to provide employees with personal protective equipment, did not sanitize its facilities and threatened to terminate anyone who raised safety concerns. Built Bar dismissed the merits of the complaint and said that the safety and health of its employees was the company’s top priority.
Flores’ suit, which seeks compensation for a host of grievances, including legal fees, past and future medical expenses, depression, diminished earning capacity and lost wages, continues to work its way through the court system.
Most states and cities across the U.S are facing similar filings. For instance, McDonald’s workers in Chicago have filed a class-action suit against the fast-food chain, accusing it of failing to adopt government safety guidance on COVID-19 and endangering employees and their families.
Utah, along with most other states, has issued guidance — mostly in the form of statute — for companies as they resume operations and bring workers back into the workplace. The federal Occupational Safety and Health (OSHA) Act requires employers to keep the workplace safe and free of recognized hazards. Most states have similar laws that sometimes give employees greater protection.
The federal government has also published guidelines for reopening businesses in the wake of COVID-19 on its Opening Up America Again website. Health and safety measures — including the familiar masking, social distancing and hand washing — have been added to strict sanitation guidelines for both business facilities and public-facing areas.
Utah offered employers liability protection in May in the form a new state law that gives the state’s businesses protection from litigation stemming from an individual contracting coronavirus on their property as the state first began to allow some of its businesses to reopen. Under the law, business owners are “immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19” that happens at their premises. The legislation does not protect businesses, however, if they display “willful misconduct, reckless infliction of harm or intentional infliction of harm.”
While the bill passed both of the state’s legislative chambers, it wasn’t without its critics and faces court challenges from a variety of fronts.
“It sends precisely the wrong message to businesses and to landlords and to people out there who should be concerned that they do everything they can that’s reasonable to protect their customers and protect their employees,” House Minority Leader Brian King - D, Salt Lake City, told The Salt Lake Tribune.
Utah wasn’t the first state to grant this kind of protection to certain establishments. Also in May, ABC News reported that at least 15 states, either through executive order or legislation, have given legal protection to nursing homes and long-term care facilities. Laws similar to Utah’s have passed or are moving through the legislative process in many states.
At a national level, passage of liability protection for employers has fallen primarily along party lines. It has become a football punted back and forth during the often-rancorous negotiations over the various coronavirus relief packages dating back to the first bill in May. It is one of the points of contention holding up the currently debated stimulus bill.
In August, Utah Attorney General Sean Reyes joined other states’ attorneys general in renewing their May call for federal immunity legislation. Reyes is leading a coalition with Georgia Attorney General Christopher Carr and 20 more state attorneys general who co-signed a second letter to Congress urging the adoption of the protections for employers as the nation goes back to work. Reyes and his colleagues said their efforts are to “help mitigate the threat of frivolous COVID-related litigation for much-needed goods and services while still ensuring victims have necessary legal redress for legitimate claims.”
“In the midst of this devastating crisis, the extension of appropriate civil liability protections to small and large businesses, frontline healthcare facilities, schools, colleges, universities, philanthropic and religious non-profits, local government and other critical providers is crucial,” said Reyes. “Utah has already put legal safeguards in place. But our economy needs these protections at both the state and federal level to provide stability for those trying to provide much-needed services while dealing with evolving science, differing standards and changing government guidelines or mandates.” A number of employer immunity bills have been introduced in Congress only to die in committee.
Republican Representative Mike Turner of Ohio, when introducing one such proposed law that would have given businesses that comply with social distancing and other safety guidelines immunity from civil suits, said, “Many businesses are concerned about reopening due to the risk associated with being held liable if one of their employees contracts coronavirus after coming back to work. This bill is proactive and seeks to protect complying businesses and employees as we begin to restart the economy.”
Manufacturers of certain protective equipment were granted this kind of legal immunity through one of Congress’ earlier coronavirus stimulus bills, but Democratic leadership has pushed back on the idea of expanding the protection to businesses, saying that it could hurt workers.
“At the time of this coronavirus challenge, especially now, we have every reason to protect our workers and our patients in all of this,” Speaker Nancy Pelosi (D-California) has said. “So we would not be inclined to be supporting any immunity from liability.”
Some employers in Utah and other places have attempted to be proactive in fending off lawsuits by asking those returning to work to sign COVID-19 liability waivers. Most legal experts agree that, depending on individual state laws, such agreements are questionable at best and likely unenforceable due to the ambiguities in defining the responsibility of an employer to maintain a safe working environment.
To complicate matters, a number of states, including Texas and Iowa, have said that an employee’s refusal to return to work will be viewed as a “voluntary quit,” making them ineligible for unemployment. And under the CARES Act, fear of contracting COVID-19 is not one of the exceptions that prevent employees from losing their unemployment benefits.
In unprecedented times like these, there is plenty for business owners and operators to worry about. And the fear of being sued by an employee who gets sick at work has to be keeping many awake at night.