Potential Liability for Employer’s Failure to Take Precautions Regarding Coronavirus

March 17, 2020

In light of the outbreak of the Coronavirus in the U.S., employers are being encouraged by government, health organizations, and others to take precautions, such as allowing employees to work from home, cleaning offices, canceling meetings, etc.  While most employers are highly motivated by a desire to protect the health and safety of their employees, customers, and business partners, employers should also beware of potential legal liability for failure to act reasonably regarding the Coronavirus.

There are a number of potential basis for liability for failure to take reasonable precautions in the workplace regarding the Coronavirus. Under the Occupational Health and Safety Act (OSHA), every employer is required to provide a safe and healthy workplace. If the employer is not taking reasonable precautions concerning the Coronavirus, it is possible that the Occupational Health and Safety Administration could take action against the employer, such as imposing fines and requiring the employer to take remedial measures.

In addition, OSHA’s whistleblower provisions would protect an employee who complained about unsafe working conditions or refused to work in an unsafe workplace. If the employer terminated an employee in retaliation for complaining about an unsafe workplace, the employee could also assert a claim for wrongful discharge in violation of public policy (whistleblowing) under common law.

Employees who become infected by the Coronavirus in the workplace, or in the course of their duties, could have workers’ compensation claims. The employee may have difficulty proving that he/she was infected in the course of his/her duties. If the employee was infected outside the workplace and not in the course of his/her duties, there would be no workers’ comp liability. This would be a question for the judge in the workers’ comp proceeding. 

It is also possible that employees could assert claims under the Americans with Disabilities Act (ADA). If an employee has an underlying condition which qualifies as a disability, such as COPD, the employer might be required to make reasonable accommodations. This could include allowing the employee to work from home to avoid social interaction which could make infection more likely, with possible devastating effects on the employee with COPD.

Employers would not want infected employees to report to work anyway, but employees who become infected by the Coronavirus, and who qualify, would be entitled to take unpaid leave under the Family and Medical Leave Act (FMLA) for their own illness or the illness of a family members. The need for leave to recover from the effects of infection might last longer than the infection itself. Both the ADA and FMLA prohibit retaliation against employees who exercise their rights under those laws and for complaining about discrimination or other unlawful conduct under the laws. 

An employer could theoretically be liable to third parties on a negligence or premises liability theory.  Vendors, customers, and other third parties who come into the workplace would not be covered by workers’ comp. However, the employer would owe such persons a duty of acting as a reasonably prudent business owner. If the employer failed to do so by taking reasonable precautions regarding the Coronavirus and, as a result, the third party became infected, the employer could be liable on a negligence claim or, a related claim, premises liability. Like an employee, a third party might have difficulty proving that he/she was infected at the employer’s location. 

It appears that most employers are going out of their way to work with their employees to minimize the spread of the Coronavirus and to protect health and wellbeing. However, employers who refuse to act reasonably could potentially be subject to administrative sanctions and civil liability to employees and third parties.