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Law360 (October 16, 2020, 3:20 PM EDT )
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| Jeffrey Smith |
It was signed into effect on Sept. 14 and makes Ohio one of at least a dozen states providing protection for employers from COVID-19-related lawsuits.
The Ohio statute shields employers with protection against civil lawsuits for damages and losses that arise out of exposure to COVID-19. This means that an employer won't be held liable for the injury, illness or death of an employee that contracts COVID-19 at the workplace, absent reckless, intentional, willful or wanton behavior. The provisions of the act are applicable retroactively to March 9 (the date of the emergency declaration) and will remain in effect through Sept. 30, 2021.
What does this mean for Ohio employers?
Ohio employers should be aware that the protections against liability for exposure to COVID-19 under the law are narrow, and will not shield them from all liability arising out of the pandemic. In fact, in Ohio, employers must remember that the federal Occupational Safety and Health Act imposes a general duty on employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm.[2]
Thus, despite the new law, no type of COVID-19 liability shield can eliminate an Ohio company's obligation to take reasonable actions to protect its employees. This means that employers in Ohio must still follow Occupational Safety and Health Administration and any state or local guidance to show the company acted reasonably in responding to COVID-19 risks.
"Reasonably" in Ohio is likely guided, at least in part, by what DeWine has ordered in terms of masks and social distancing requirements. Thus, face covering mandates could very well be considered the standard that must be complied with, and if an employer chose not to enforce such mandate — or went even further and said "you don't have to wear face masks here" — then they would likely be considered to have acted in such a way that removes them from the protection of the statute.
Employers should also be aware that Ohio's liability shield does not protect against other types of employment law claims arising from the pandemic including allegations of wrongful termination and employment discrimination. According to our COVID-19 litigation tracker,[3] there have been almost 50 employment litigation matters filed in Ohio with employment discrimination being the most common. But Ohio employers should be reminded that claims of employment discrimination are not covered under the state's new liability protection.
As of today, it's interesting to note that the same COVID-19 litigation tracker only shows one wrongful death claim in Ohio, and this means that Ohio's COVID-19 liability protection statute could potentially only protect an employer from damages in one of the state's almost 50 employment cases related to COVID-19. And if the parties to that lawsuit could argue that the employer was reckless, intentional or acted willfully or in a wanton manner, then the law would not even apply.
The remaining cases in Ohio likely arise out of employment disputes that could have arisen with or without the COVID-19 pandemic. Likely many of the wrongful termination cases have arisen out of the difficult economic times facing employers and employees, but those are not protected by the COVID-19 liability protection act because the harm is not due to the exposure to COVID-19.
An employer that must lay off or furlough an employee, or reduce an employee's hours, does so because of the economic conditions created by the pandemic. And an employer that so acts must continue to do so within the legal framework that existed prior to the COVID-19 pandemic.
What about similar federal action?
There has been ongoing discussion among business groups and legislators seeking a COVID-19 liability protection law at the federal level, which would apply to employers across the country. In May of this year, the Employer and Employee COVID Protection Act was introduced in the U.S. House of Representatives by Rep. Mike Turner, R-Texas. Later, in September, the Safe to Work Act was introduced in the U.S. Senate by Sen. John Cornyn, R-Texas.
Unfortunately, there has been no further action on either of these efforts to pass a federal COVID-19 liability protection law. At this point, there appears to be little willingness to discuss these proposals in U.S. Congress absent a simultaneous discussion of a further COVID-19 stimulus bill.
While the president recently announced that he would not entertain stimulus discussions until after the election, it appears that there may be ongoing stimulus discussions, so it remains to be seen exactly whether a COVID-19 liability protection rule would be added on the federal books soon.
What should employers do?
With the narrow protection provided in the state and the lack of any federal protection, Ohio employers should be proactive and do whatever they can to limit their risk of liability by following recommendations for safe workplace practices, including social distancing, mask wearing, sanitation, and others provided by state and local authorities.
Besides continuing to follow the recommendations issued by state and local authorities, employers should also pay particular attention to all applicable federal guidance from OSHA and the Centers for Disease Control and Prevention.
The take-home message for Ohio employers is that they must not forget OSHA's general duty to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm.
Thus, despite the new law, Ohio employers must still take reasonable actions to protect employees, which means strictly following OSHA and any state or local guidance to show the company acted reasonably in responding to COVID-19 risks. Ohio employers should continue to monitor recommendations from agencies and experts on how they can best protect their workers and avoid the future risk of liability.
Jeffrey Smith is a partner at Fisher Phillips.
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] Ohio House Bill 606: https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-606.
[2] OSH Act's General Duty Clause, Section 5(a)(1) at https://www.osha.gov/laws-regs/oshact/completeoshact.
[3] https://www.fisherphillips.com/covid-19-litigation.
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