Employers’ Liability for COVID-19

Many employers are returning to business as restrictions due to COVID-19 begin to lift in several states. Employers are faced with additional concerns regarding employees who may contract the virus through their employment and keeping the workplace safe.

Employees who become sick through their work may seek compensation for their illness through a Workers’ Compensation claim. Employers are typically protected from liability for an employee’s work-related illness or injury through Workers’ Compensation insurance. The carrier may or not approve such a claim; it may be difficult for employees to prove they contracted the virus while at work.

The Occupational Safety and Health Act places a general duty on employers to provide an employee with “a place of employment which (is) free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The Occupational Safety and Health Administration (OSHA) may issue fines or other penalties for employers who fail to follow that requirement.

In response to COVID-19, OSHA has published Guidance on Preparing Workplaces for COVID-19; it provides information on what all employers can do to reduce risk of exposure, as well as additional guidance for jobs that have additional risk for exposure. Employers are encouraged to adopt the recommendations of OSHA.

Employees who have a disability that could be exacerbated by PPE, hygiene, or social distancing protocols might be eligible for accommodations under the Americans with Disabilities Act (ADA). Employers are advised to take such claims seriously and to engage in the interactive process to determine if there is a reasonable accommodation available.

Employers seeking to create a waiver of liability for employees to sign should be wary. As of now, there is no additional legislation to the laws mentioned above. A waiver will not relieve the employer of obligations under Workers’ Compensation, OSHA, or the ADA. Legal counsel should review any waiver before implementation.

Employers Council is monitoring legislation in this area and will keep you informed regarding new developments.