Employer Liability in the Time of COVID
Updated: Nov 5, 2020
By Nicole Cook
This article is not a substitute for legal advice. See here for the site’s reposting policy.
As we are all too well aware, there are myriad sources of exposure to COVID-19. The workplace is one. Farms, as essential businesses, have continued to operate throughout the pandemic, and farm employers are starting to ask whether they should worry about their employees suing them claiming that they contracted COVID-19 at work. This post looks at the potential types of claims that employees who contract COVID-19 could bring against their employers, possible defenses to such claims, and how employers can reduce the likelihood of a claim being brought in the first place.
Before we jump into the thorny thicket of COVID-19 claims against agricultural employers, it’s important to note a few things. The first is that, as of this posting, there are no federal or state statutory protections for employers for claims that employees might bring against employers related to contracting COVID-19 at work. Both the U.S. Chamber of Commerce and U.S. Senate Majority Leader Mitch McConnell have called for federal legislation to shield businesses from exposure to liability. But, as of this posting, there is no such legislation.
Second, at the time of this posting, Maryland has not put in place any mandatory COVID-19 prevention regulations for agriculture. Other states, like Washington and Oregon, however, have, and other states are expected to follow suit. Continue checking this blog and the Maryland Agriculture Law Education Initiative’s website for any updates or developments concerning any new regulations for agricultural operations in Maryland.
The third thing is that employment law tends to be very fact-specific. Employers should consult with attorneys who specialize in employment matters about their specific questions, including the applicability and impact of any new legislation passed related to COVID-19.
Most Claims Will Likely Be Negligence Claims
If an employee believes they contracted COVID-19 at work, they are likely to claim that they contracted the virus because their employer was somehow negligent. When a person sues alleging that they were injured as a result of the negligence of another, they are asserting that they can prove that the other person or company owed them a duty to act toward them like a reasonable or prudent person would have acted under the same circumstances, that the person or company failed to act reasonably (i.e., that they breached the duty to act reasonably), and that the failure to act reasonably was the cause of their injury. Employees can file negligence claims seeking money to compensate the employee and his or her family for various damages related to the employee contracting COVID-19 such as medical expenses and lost wages, or a wrongful death claim could also be filed by the family of someone who died against an employer for deaths related to COVID-19 infections allegedly contracted in the workplace. Employees might also seek injunctive relief in addition to money damages or instead of money. An injunction is an order from a court to either do something or to stop doing something. In the case of COVID-19, employees could seek an injunction to force an employer to enact safety measures.
Potential theories of negligence against farm employers related to COVID-19 include (1) failure to properly screen employees for COVID-19; (2) failure to protect employees from other symptomatic (or asymptomatic) persons; (3) failure to cleanse and sanitize the workspace; (4) failure to provide personal protective equipment (PPE); (5) failure to implement a social distancing policy; (6) failure to implement various government guidelines; and/or (7) failure to implement a telework policy for those workers who could perform their jobs remotely. An employee could allege that their employer had a duty to take some or all of the above measures, however, negligence claims are more likely to be tied to allegations that the employer had a duty to follow federal and state mandates, regulations, recommendations and guidelines regarding employee safety, and that they failed to do so.
Proving causation, however, would likely be a difficult challenge for an employee because of the fact that there are so many potential sources of exposure to the virus. Linking one person’s illness to exposure at his or her workplace could present a high bar to successfully pursuing a claim against his or her employer, although not an impossible one. Employers who take all reasonable measures to reduce the risk of exposure for employees reduces not only the risk to exposure for their employees, but also the risk that an employee will succeed in convincing a jury that the employer failed to take all reasonable measures and/or that the employee in fact contracted the virus at work.
The U.S. Department of Labor Occupational Safety and Health Administration (OSHA), like many other government agencies, has posted recommendations and guidance applicable in various workplaces for reducing the risk of spreading COVID-19. Importantly, OSHA and the U.S. Centers for Disease Control and Prevention (CDC) have issued joint interim guidance for agricultural workers and employers. OSHA has also identified Maryland Occupational Safety and Health State Plan standards and what it considers to be pre-existing OSHA standards and regulations applicable to COVID-19. These standards include: (1) OSHA’s PPE standards; (2) the General Duty Clause that requires employers to furnish “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;” and (3) the Recordkeeping and Reporting Occupational Injuries and Illness Requirement. If you are not already aware of these, spend some time reviewing them and incorporating them into your policies and procedures on your farm as appropriate to lessen the risk to your employees of exposure to COVID-19. And, as discussed further below, be sure to explain to your employees what you are doing and document it!
What About Workers Compensation?
Workers compensation allows employees to collect benefits for workplace injuries or illness without proving their employer was at fault. Generally, workers compensation is considered an exclusive remedy, meaning employees are prohibited from filing a civil suit for negligence against their employer. Under Maryland’s Workers’ Compensation law, covered employees who contract an “occupational disease” as the result of doing their job are eligible to receive certain benefits. See MD Code Labor and Employment Section 5-101. Similar to showing causation in a negligence claim, an employee seeking workers’ compensation benefits has to be able to show that it can be reasonably concluded that the “occupational disease” was contracted as a result of the person doing his or her job. See MD Code Labor and Employment Section 9-502(d). Whether COVID-19 will be deemed to be a compensable “occupational disease” in Maryland remains to be seen. If COVID-19 is a covered occupational disease or injury, then most negligence claims for money filed by employees against their employer should be barred by Maryland’s workers’ compensation law. As of this post, however, there haven’t been any workers’ compensation claims in Maryland that have been adjudicated based on claims that an employee contracted COVID-19 at their workplace so we don’t know whether or how Maryland will treat COVID-19 in a workers’ compensation case.
You can find information about Maryland Workers’ Compensation for farm employers in this post, by searching for “workers compensation” in this blog, and in ALEI’s publications about Farm Labor at umaglaw.org. But, basically, in Maryland, if a farmer, including a dairy farmer, has at least three full-time employees or an annual payroll of at least $15,000 for full-time employees, then the farmer is subject to Maryland’s Workers’ Compensation Insurance law. Md. Code Ann., Lab. & Empl. §9-210. Employers who aren’t subject to the law can still opt to participate in Maryland’s Workers’ Compensation program, and, in fact, doing so is recommended as a way to help reduce the risks associated with employee lawsuits during “normal” times let alone during a pandemic. Information for employers and employees about Maryland’s Workers’ Compensation is available at the Maryland Workers’ Compensation Commission’s website.
What Can Employers Do To Protect Their Employees And Minimize Their Potential Legal Liability?
Many farm employers are already taking affirmative steps to try and protect their employees from COVID-19. But, not all of them have implemented formal practices or procedures, nor have they communicated with their employees what steps they are taking to reduce the risk of exposure. The best factual defense to any potential employee lawsuit alleging claims related to exposure to COVID-19 is to put in place appropriate procedures to address the risk of exposure to COVID-19 by your employees while they are at work. Start by consulting applicable guidance from OSHA, the CDC, and state or local health officials, and incorporate appropriate practices on your farm based on those recommendations. And, be sure to document what you’re doing! This includes communicating to your employees what you are doing to reduce their risk of exposure at work, and also how they play a part in following the procedures to help keep everyone safe. Paying careful attention to applicable federal, state, and local health department standards and recommendations, communicating to your workers what measures you’re taking and documenting all of this may not only help to protect your employees but may also help discourage any would-be lawsuits, avoid the risk of regulatory investigations or actions, and minimize the risk that violations of the standards could be used as evidence of negligence in a lawsuit.
You’ll find more resources related to changes in labor and employment laws related to COVID-19, including information about paid family leave and paid sick leave for employees, the Paycheck Protection Program, and the H2-A Visa Worker Program, on ALEI’s COVID Resources webpage.
Be sure to also reach out to your county Extension office for information about other matters related to changes in laws that apply to farm workers. For example, the University of Maryland Extension recently published an article in its June 2020 Agronomy News (Vol. 11, Issue 3) about the U.S. Environmental Protection Agency’s recently released Temporary Guidance on Respiratory Protection During COVID-19.