June/July 2020  Volume 18, Number 3        

judge with gloves and a gavel

Employers Liability and COVID-19

At least one lawsuit has already been brought against an employer alleging it owed a duty of care to employees to prevent them from contracting COVID-19.

Employers Liability is not something we usually write about in our workers comp newsletter. That's because for the most part, workers compensation is a "no fault" coverage, where determining is not an issue. Most workers' compensation policies have a second part though, which covers an employer's tort liability in what are usually rare instances where an employer gets sued by an employee. With COVID-19 we may start to see more instances of this.

According to insurance broker Willis Towers Watson, a lawsuit has already been brought against an employer alleging it owed a duty of care to employees to prevent them from contracting COVID-19. According to the lawsuit, says the broker, the duties that the employer allegedly violated included failing to:

  1. Cleanse and sterilize the workplace in order to prevent infection of COVID-19
  2. Implement, promote and enforce social distancing guidelines promulgated by the governments of the United States of America and the States
  3. Provide employees with personal protective equipment such as masks, latex gloves and other devices designed to prevent the infection of COVID-19
  4. Warn employees that various individuals were experiencing symptoms and may have been infected by COVD-19 which was present and active at the workplace
  5. Adequately address and otherwise ignored other employees who communicated to management that they were experiencing signs and symptoms of COVID-19
  6. Follow the recommendations and descriptions of mandatory safety and health standards promulgated by the United States Department of Labor and the Occupational Health and Safety Administration as set out in Guidance on Preparing Workplaces for COVID-19
  7. Follow the guidelines promulgated by the Center for Disease Control and Prevention (CDC) to keep its workplace in a safe and healthy condition and to prevent employees from contracting COVID-19
  8. Develop an infectious disease preparedness and response plan as is recommended by the CDC
  9. Prepare or implement basic infection prevention measures as is recommended by the CDC
  10. Conduct periodic inspections of the condition and cleanliness of the workplace to prevent and/or minimize the risk of employees and others from contracting COVID-19 as is recommended by the CDC
  11. Provide employees with antibacterial soaps, antibacterial wipes and other cleaning agents as is recommended by the CDC
  12. Develop policies and procedures for prompt identification and isolation of sick people as is recommended by the CDC
  13. Develop, implement and communicate to its employees about workplace flexibilities and protections as is recommended by the CDC
  14. Implement engineering controls designed to prevent COVID-19 infection including, but not limited to, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as clear plastic sneeze guards as is recommended by the CDC
  15. Cease operations of the workplace and to otherwise close the workplace when it knew or should have known that various employees were experiencing symptoms of COVID-19
  16. Properly train its personnel to implement and follow procedures designed to minimize the risk of contracting COVID-19
  17. Periodically interview and/or evaluate its employees for signs and symptoms of COVID-19
  18. Prohibit employees who were exhibiting signs and symptoms of COVID-19 from working or otherwise entering the premises
  19. Personally, interview or evaluate whether prospective employees had been exhibiting signs and symptoms of the COVID-19 prior to the commencement of their employment. Employers may want to use these allegations of non-compliance as a checklist for how to avoid these types of lawsuits.

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In this issue:

This Just In...

COVID-19 Workers Comp Update

Workers Comp Basics: The Four Types of Disability Benefits

Employers Liability and COVID-19

What's More Important? Reducing Frequency or Severity?



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