Visitors flocked to Sand Hollow State Park in Utah and hair salons in Georgia after certain states reopened certain public places.
A handful of states are reopening following blockages triggered by coronaviruses, raising two compelling questions: Should employers make sure the workplace is safe? And will they be held responsible if employees contract the virus?
The short answer is that if health care providers must follow federal safety guidelines to guard against contagion, other companies are not required to do so, leaving it to states and localities to set standards. , according to experts. And sick employees who seek damages, usually through workers’ compensation, have to prove they got the virus at work – a particularly difficult challenge.
“It is often a tough battle,” for workers, says Jonathan Segal, a labor lawyer who represents the companies at the Duane Morris law firm in Philadelphia.
States like Georgia, South Carolina, Tennessee and Alaska have at least partially lifted the arrested in recent days. In Georgia, gymnasiums, bowling alleys, barbers and massage therapists were allowed to open on Friday and restaurants were allowed to open on Monday.
The Occupational Safety and Health Administration requires employers to establish a workplace “free from recognized hazards that cause or are likely to cause death or serious bodily harm” to employees. To meet this standard, OSHA recommends that companies follow the guidelines for the Center for Disease Control, including asking employees to stand six feet from colleagues or customers, taking temperatures, disinfecting surfaces, and providing face masks, hand sanitizers and barriers, if applicable.
Georgia’s Three-13 is one of several state-owned companies that are opening their doors to customers again. (April 24)
“We see employers doing this to mitigate this risk,” says Christina Meddin, labor lawyer at Seyfarth Shaw in Atlanta, who advises business clients to follow the guidelines.
The more guarantees a company adopts, the “better your case will be” in the event of an OSHA challenge or a lawsuit, said Jennifer Scharf, a health lawyer with Coppola in Amherst, New York.
Here’s the catch: OSHA applies CDC guidelines and conducts inspections in response to deaths in hospitals, but not in other cases, according to an OSHA memo released April 13 and Debbie Berkowitz, program director worker health and safety for the National Employment Law Project, a workers’ advocacy group. About 4,000 corovavirus-related complaints have been filed against employers who do not provide safe workplaces, but the agency has not issued any quotes or fines, said Berkowitz. Instead, she says, OSHA tells companies voluntary guidelines.
“OSHA does not apply anything,” said Berkowitz, a former senior OSHA policy advisor during the Obama administration. “OSHA doesn’t have the backs of workers … It’s a travesty. “
Responding to the criticism, the Department of Labor, which includes OSHA, said in a statement: “OSHA will consult CDC guidelines and its own guidelines” as it determines whether a workplace is “harmless recognized ”.
“When OSHA finds a violation, a citation will be issued and a civil monetary penalty will be imposed.”
Some states take the initiative
Some states create their own guarantees. In addition to the social distancing requirement and other standards, Georgia’s governor’s decree Kemp requires that restaurant workers wear face coverings. But most other companies should only provide personal protective equipment – such as face covers – “if they are available and suitable for the job and location of the worker in the company.”
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Bernstein says that is not enough, noting that “there is a significant risk of transmission of COVID-19 by infected people who are asymptomatic and presymptomatic”.
Many Georgian companies, concerned about the safety of employees and customers, as well as any legal liability, choose to remain largely closed. Suzanne Vizethann, chef and owner of Buttermilk Kitchen in Chastain, provides curbside pickup, e-commerce and street food, but does not plan to reopen her 85-seat dining room for at least a few months.
“We don’t feel comfortable that this thing is behind us,” she said. “We are not going to do anything that will endanger (the employees). It could be a big handicap if someone gets sick and their family gets sick. She adds that it is much easier to monitor social distancing between employees with the restaurant’s current limited services.
Other companies in Georgia are reopening, but are trying to follow all state directives – and more. Lester Crowell, owner of the Three-13 salon, spa and boutique in Marietta, reopened on Friday and demands that all hairdressers and technicians wear masks and gloves. And even though the hairstyling stations are already six feet apart, the shop is a good measure by leaving all the other chairs empty in the hairstyling section of 39 chairs and the coloring area of 24 chairs. Stylists are prohibited from gathering in the break room and use disposable gowns for clients, among other safety measures.
“I’m anxious,” says Crowell. “It is a difficult decision to make, but we are a business and we are available to be open. If you say we take a chance, I guess we are. But he added, “We are going beyond” the guidelines.
Workers face obstacles proving their responsibility
Nationally, employees – or their families – can claim damages if workers fall ill or die. But in most states, employees who can file for workers’ compensation, a type of insurance, must go this route and give up their right to sue, according to lawyers. Meanwhile, winning such a claim can be difficult, as workers must prove that they contracted coronavirus at work – a very high bar during a pandemic.
“While it is recognized that certain groups of workers are at high risk of getting a virus, there is still the reality that they can get it outside of work,” said John Ruser, CEO of Workers Compensation Research Institute, an independent group that analyzes workers’ compensation issues. “The burden of proof would be heavy enough for them to show that it is related to work.”
A workers’ compensation case could be strengthened if a number of workers in the workplace suffered from coronavirus, says Segal.
Meanwhile, a handful of states, including Illinois and Kentucky, have begun shifting the burden of proof from worker to employer. Under an order from the governor of Illinois, J.B. Pritzker, essential workers in businesses such as grocery stores and hardware stores would “assume that essential workers caught the disease at work.” The company will then have to demonstrate otherwise.
At the end of last week, however, a county judge issued a temporary restraining order blocking the rule after groups of businesses took legal action.
Wave of lawsuits?
Some workers and their lawyers are heading to the courts on the cutting edge of what could be a wave of lawsuits stemming from the pandemic.
In Illinois, the family of a Walmart worker who died of a coronavirus sued the retailer in early April, alleging that the company had not done enough to protect its workers from the disease. Among other concerns, the worker’s family, Wando Evans, said that Walmart had not done enough to enforce social distancing guidelines, properly sanitize the store, or provide sufficient personal protective equipment for employees.
Walmart spokesperson Randy Hargrove told USA TODAY in a statement that the Evergreen Park, Illinois, store where the worker was employed had passed third-party environmental and health inspections.
“We are heartbroken at the death of two associates in our Evergreen Park store and we cry with their families,” said Hargrove. “We have taken steps to strengthen our cleaning and sanitation measures, which include a thorough cleaning of key areas.
And in Missouri, a group of nonprofit workers sued Smithfield Foods in federal court on behalf of its workers after a coronavirus outbreak at a Smithfield plant in Milan left several workers sick. Prosecution alleges Smithfield workers were forced to work without adequate protective equipment, “shoulder to shoulder”, were unable to wash their hands and were discouraged from taking sick leave and bonuses to work during their illness. The lawsuit also alleges that Smithfield had not implemented a plan to test and find contacts of workers exposed to the coronavirus.
The prosecution said Smithfield’s operations at the plant could spread the coronavirus to the surrounding area unless other measures are taken. As a result, the complainants request that the plant be declared a “public nuisance” and that Smithfield be forced to change its policies.
Smithfield did not return a call for comment. But in a file filed on April 24, the company said, “To date, there have been no confirmed diagnoses of COVID-19 among workers at the plant or in Sullivan County. Meanwhile, Smithfield has and continues to follow all OSHA requirements and all guidelines from the CDC and other public authorities. “
Walmart plaintiffs have been able to circumvent workers’ compensation mandate because they are accused of gross negligence while Smithfield plaintiffs rely on a new “public nuisance” argument and do not claim damages, says Bernstein.
Companies seek to limit their liability
Worried about these lawsuits and a hodgepodge of state laws, the United States Chamber of Commerce is one of several corporate groups calling on Congress to set a federal standard that limits the liability of employers who follow directives of the CDC.
“We are looking for a closely tailored policy that will give employers the confidence to reopen their businesses without there being a cloud of responsibility,” said Harold Kim, president of the Chamber’s Legal Reform Institute. For example, companies that check employee temperatures may have different criteria for what constitutes illness, he says.
The White House supports the appeals. President Trump told reporters last week that he wanted to try to “take responsibility away from these companies” as they started to open because “we want companies to open up and open up.” “
National Economic Council director Larry Kudlow said, “Some measures can be taken by decree or through regulatory changes. Some may require legislation. “
Democrats, meanwhile, are trying to reinforce what they see as weaknesses in the application of OSHA. Democratic lawmakers have lobbied for a bill requiring OSHA to publish an emergency standard to compel all workplaces to implement coronavirus exposure and control plans.
“We cannot fight this pandemic if we do not take immediate action to protect the millions of health, food and grocery workers, and all those who work on the front lines every day to cope with this pandemic and move our economy forward, “says Wisconsin Senator Tammy Baldwin, one of the sponsors of the bill.
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