Employer Liability In The Face Of A National Emergency
On April 1, 2020, the State of Florida issued a mandatory Executive Order requiring all residents of Florida to “limit their movements and personal interactions outside their home to only those necessary to obtain or provide essential services of conduct essential activities”. This Order supplemented prior direction from state and local authorities closing schools, restaurants, bars and moving theaters in an attempt to protect citizens and limit the spread of the COVID-19 pandemic.
In the face of this Order, and similar guidance from the federal government and the Center for Disease Control (CDC), most employers have reacted by allowing employees to work remotely, where feasible. Doing so balances the need to continue providing vital services while protecting both employees and the public at large.
But what happens when an employer simply refuses to follow this guidance and requires workers to be present on the job site regardless of the stated danger. As with most areas of the law, the answer is: it depends.
Certainly, there are some areas of employment that do not, and logically cannot lend themselves to remote work. These vital areas of service and economy clearly include healthcare workers, first responders, and grocery store clerks but the actual category of truly “essential” jobs is too broad to provide an exhaustive and definitive list. Therefore, the better question is what an employer’s liability is if it prevents an employee from working remotely in the face of this pandemic if doing so is both feasible and conducive to getting the job done.
As of now, there appears to be two (2) potential consequences for an employer’s willful failure to adjust to the nation’s new, albeit temporary, reality. First, a possible rise in workers’ compensation claims and second, potential liability under the regulations provided by the Occupational Safety and Health Administration.
- Workers’ Compensation: In Florida, employees are generally prohibited from suing their employer for workplace-related incidents and injuries caused by general negligence. Employers are provided with immunity from suit because the state has enacted a broad workers compensation law that provides no-fault benefits (primarily lost wages and medical expenses) as an alternative. This allows employees access to treatment (and wage replacement) without the need to prove their injury was the result of employer negligence (or any negligence at all).
A worker contracting COVID-19 may well be entitled to workers’ compensation benefits if he or she can establish that the virus was contracted at work. Currently, this seems like it would be a high factual barrier, however, with the federal and state governments gearing up for a system of contact-tracing (essentially working with a patient to trace their steps prior to infection to reverse engineer the source) an employer filing a claim will likely have a leg up in the process.
- OSHA: The Occupational Safety and Health Administration is a federal agency under the Department of Labor. The agency is tasked with ensuring that employers provide a “ place of employment free from recognized hazards likely to cause death or serious physical harm”. In light of the pronouncements from the CDC, the National Institute of Allergy and Infectious Diseases and the state government, it is clear that COVID-19 is a recognized hazard in nearly every workplace. In fact, OSHA has just released a new poster aimed at mitigating Corona-related dangers to employees. The current OSHA guidance includes: encouraging sick workers to stay home; and, establishing flexible worksites and staggered shifts.
Importantly, employers may have both criminal and civil liability for violation of OSHA rules. This can even include personal liability for managers who fail and refuse to follow appropriate safety guidelines.
The Coronas Virus pandemic is unchartered territory in the modern history of this country and therefore this area of the law (and potential liability and remedies) will likely evolve as the Courts begin to get involved. Without question, the safest course of action (both from a physical and liability standpoint) would be to do everything possible to work in an isolated environment if possible and to allow employees to flexibility to do so if requested.
The law firm of Lesser, Lesser, Landy & Smith, PLLC has been assisting victims injured through the negligence and intentional wrongdoing of others for more than ninety (90) years. If you have any questions about recourse that you may have arising from an injury or illness that you believe was caused by a third-party, we are always happy to discuss your concerns in a free, confidential consultation.
This blog is written by attorney Joshua Ferraro.