Where Are the Problems?
The entire country looks forward to returning to normal and restarting the economy, but when that will happen remains today's great unknown. We do know though that the engine will restart at some point. When that bright day dawns, and businesses re-open their doors, we expect to hear the second-guessers, the Monday morning quarterbacks, and we will surely see the plaintiffs' bar pointing its critical finger at employers' decisions. Even well-intentioned action or inaction will draw lawsuits. Savvy businesses should start preparing now for how they will reduce their litigation risk profile during the eventual re-start of the economy.
As companies reopen, they must take reasonable measures to prevent the spread of the new coronavirus among returning employees. It is long-settled law that employers have a duty of care toward their employees to prevent physical harm in the workplace. That duty may give rise to a claim by employees who contract the virus or become sickened by COVID-19 because of an employer's failure to introduce reasonable safety measures in the workplace.
To reduce the likelihood of a claim and to increase worker/employee/visitor/shopper/invitee safety, organizations need to consider risks to and from those same groups. Before reopening, these organizations must adopt action plans reasonably designed to minimize those risks consistent with applicable standards of care. Additionally, given the persistent presence of a highly communicable virus, those entities may need to reassess whether standards of care have shifted. Prudent businesses will consider, among other things:
- Continued communications and the posting of workplace notices regarding best practices for hygiene safety (e.g., no handshakes, hugging greetings, or face touching; visitor restrictions in the workplace; frequent hand washing; use of disinfectant products; and social distancing practices where possible for shoppers, co-workers, and patrons)
- Virtual or, where safe and appropriate, in-person training regarding best practices for a return to work
- Temperature testing of employees, social activity questionnaires, and other screening procedures
- What, if any, safety equipment an employer is required to provide employees
- The feasibility of continued remote working, including potential disability accommodation issues for employees who have been performing work on a remote basis during the pandemic
- Whether one or more of the organization's insurance policies may cover losses associated with a potential claim
Another Field of Potential Claims on the Horizon
In addition to the risk of suits brought by employees claiming they were exposed to the virus because of an employer's failure to exercise due care, there is additional liability arising from the "take home toxic tort theory of liability." Many states hold that employers owe a duty of care to third-party non-employees, such as spouses and family members of employees exposed to harmful agents brought home from the workplace by the employee. Courts in such states have held that where harm to the third party is a foreseeable consequence of the employer's failure to take reasonable steps in the workplace, that foreseeability gives rise to a duty of care to the third-party non-employee. While the law is far from uniform, and many states refuse to extend the duty of care beyond the employer-employee relationship, there are dozens of decisions from state high courts around the country holding that an employer's awareness of the risk to non-employees, combined with a failure to take proper preventative precautions, renders the employer liable to the third parties for dangerous workplace conditions.
We note that this body of law, colloquially known as "take home toxic torts," arose in connection with employees who brought home with them toxic agents, usually on their hair and clothes. These toxic materials, such as asbestos, would endanger spouses and family members living with the employee over many years. Clearly, a virus is a different species of harmful agent, but the plaintiff's bar will likely make an effort to extend the take home toxic tort body of law to the new world, where the coronavirus is so very contagious and deadly. In the current climate, ill families will not be regarded as the scenario where "Mom or Dad brought home a head cold." The current pandemic is entirely different, and the plaintiff's bar is watching.
Wise precautionary steps taken now will be meaningful later for an organization's defenses against COVID-19-related lawsuits and other claims. Reasonable and practical early measures can pay solid dividends in terms of defense in lawsuits. Venable's "Back to Work" team stands ready to help clients tactically position themselves against the inevitable wave of COVID-19 litigation.