By Robert O'Hara and David Garland

Law360 (May 13, 2020, 3:53 PM EDT )

Robert O’Hara

David Garland

The potential for employee class actions in the COVID-19 era is starting to emerge. While traditional class actions are likely to be filed in wage and hour discrimination cases related to layoff, furlough or other return-to-work issues, newer threats are looming — the failure to provide a safe workplace chief among them.

Since a global pandemic of this magnitude had not occurred since 1917, governments and many employers were caught short both with inadequate supplies of personal protective equipment, or PPE, and procedures for handling an airborne disease. Numerous press accounts from the earliest days of the battle against the virus by health care workers and first responders highlighted woefully inadequate supplies of PPE and lacking procedures.

PPE procurement efforts received prominent coverage at the White House daily briefings and from governors' press conferences. The need was evident and widespread.

Moreover, employers looking for guidance turned to nontraditional workplace safety sources, the National Institutes of Health, the Centers for Disease Control and Prevention, and the World Health Organization, to name a few. Unfortunately, the infectious disease experts struggled with incomplete data and often provided conflicting guidance. It was a classic "fog of war" scenario — playing out on an international scale.

Now that the fog is beginning to lift and return-to-work procedures are being developed, employers are looking to minimize potential liability pitfalls as employees filter back into the workplace. The blame for the alleged failure to provide safe workplaces will be significant and is already rising.

Claims will no doubt be made that health care facilities and essential businesses, whose employees may or may not have contracted COVID-19, are liable for fatalities, hospitalizations, lost work and the subsequent spread of the disease to the community. Nurses' unions in New York have already sought injunctive relief to force employers to provide adequate PPE so they can continue to battle the virus in a safe environment.

The guardian of workplace safety, the Occupational Safety and Health Administration is responsible for protecting employees in the workplace and requiring employers to provide safety procedures and equipment where needed. But with COVID-19, OSHA has not offered new airborne disease guidance; rather it has relied on the Section 5(a)(1) general duty clause of the Occupational Safety and Health Act, which requires employers to provide a safe work environment.[1] 

OSHA has also relied on various standard, noncrisis regulations, such as mask fit-test exams, infection control practice and training on the handling of hazardous biowaste. The OSHA rationale appears to be that a regulated safe environment with proper safeguards, training and record-keeping prepandemic will suffice in the post-pandemic workplace. Some in Congress have argued for OSHA to provide more specific guidance for airborne pathogen and disease, but thus far OSHA has not done so.

OSHA did make one significant change to its standard guidance, however, when on April 10, it relieved employers from making work-relatedness determinations related to COVID-19 — except for workers in health care institutions, emergency response organizations and correctional institutions. In these three areas, employers are required to make a work-relatedness determination and log COVID-19 fatalities, hospitalizations and exposures. This effectively created a rebuttable presumption that an employee working in one of those facilities contracted the disease at work. 

The work-relatedness presumption is difficult to support factually, particularly in hot-zone areas like New York, New Jersey, Connecticut, Louisiana and other areas where COVID-19 spread outside the workplace is rampant. Indeed, it is nearly impossible to determine where a person contracted the virus, as much of the infected population is asymptomatic and the exposure period is likely longer than 14 days prior to symptom onset.

The potential sources are endless (e.g., mass transit, supermarkets, crowded streets, schools and home environments and, prelockdown, everywhere else). Potentially, this has significant ramifications for OSHA investigations, and it could make it easier to force workers' compensation coverage and/or open mass tort liability for wrongful death suits if not dealt with in the workers' compensation arena.

Consider a scenario where an essential worker (health care, first responder or correctional facility) contracted COVID-19 and subsequently died from the disease. The employer is now required to record the fatality on its OSHA 300 log and report the death within eight hours of occurrence, regardless of how, when or where the exposure occurred, or where the death took place. Prepandemic, hospitals would not record an employee death by illness or notify OSHA absent specific evidence of toxic exposure, for example a lab accident, or a needle stick with a known contagion.

The fact that an essential business must now treat a COVID-19 death as work-related (at least per the log and notification protocol) creates potential liability for workers' compensation coverage at best and for wrongful death exposure at worst. This requirement also creates the potential for a class action for all similarly situated death cases against an essential service provider.

The potential for a wave of such cases has not gone unnoticed in Washington, D.C. Senate Majority Leader Mitch McConnell, R-Ky., reportedly agrees with the need for a liability shield for businesses providing essential services, which have remained open during the pandemic.

According to The Wall Street Journal, McConnell informed Senate Republicans about the need for a shield, but no specifics were available. In the absence of a legal shield, meat processing facilities, grocery and drug stores, hospitals, critical care facilities and other essential service providers could be targeted.

OSHA has also recently stated that it will prioritize death investigations involving health care workers and first responders, but its focus will be on whether an employer's actions, standards and procedures properly followed regulation and available guidance, and will cite only the most flagrant violators.

The number of health care workers who have contracted COVID-19 is estimated to be more than 9,000, but since health care facilities were not logging cases until the April 10 guidance issued, it is likely much higher. OSHA has already received dozens of fatality notifications for health care workers as well.

As employers are now crafting return-to-work procedures, guidance from OSHA and other government agencies will be important to provide employees with the confidence that they are returning to a safe work environment. As part of their procedures, employers should include robust policies and track guidance closely to ensure both protection for their employees and as a potential shield from liability. They must provide clear guidance to employees on hygiene, social distancing, mask use when appropriate, and reporting protocols if symptoms occur.

Rigorous monitoring and enforcement of these policies and procedures should be done to provide maximum protection. As important, this policy and procedure crafting and implementation will need to be tailored to the specific needs of each workplace.
 

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Robert J. O'Hara is a member at Epstein Becker Green.

David W. Garland is a member and chair of the national employment, labor and workforce management steering committee at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] An employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 

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