In an effort to combat the COVID-19 pandemic – and to comply with state and local governmental stay-at-home orders – virtually all nonprofits across the country closed their offices in March and required their employees to work remotely. Now, as states, cities and counties start to reopen their economies, nonprofits are now or soon will be contemplating the reopening of their physical offices. But as they do so, nonprofits are very concerned about the health and safety of their employees as they return to the workplace.
In addition, nonprofits are considering the potential liability risks they may face from their employees in the face of a dangerous virus for which a vaccine or cure has yet to be found and may not exist or be widely available anytime soon. From the liability perspective, nonprofit employers face the possibility that their employees will contract the novel coronavirus and hold them accountable for not putting proper protections in place in the workplace.
This article briefly explores the legal standards and constructs in place to protect employees and hold employers accountable and discusses some steps that nonprofit employers can take to help guard the health and safety of their workforce as it returns to the office and mitigate their own liability risk in connection with this return.
According to the federal Occupational Safety and Health Act (the Act), employers are required to “furnish to each of [their] employees 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 to [their] employees.”
While the federal Occupational Safety and Health Administration (OSHA) has not released mandatory guidelines relative to workplace reopenings in the wake of COVID-19, OSHA has issued two sets of non-binding guidance in this area, one in March 2020 and one in June 2020. [Note: OSHA issued updated COVID-19-related guidance for non-healthcare workplaces on January 29, 2021.] Employers could face risks under the Act if they do not take steps to protect their workplace and ensure it is not exposed to individuals who may have contracted the virus.
High Legal Bar for Employees to Overcome Generally
Based on the established legal precedent in this area, employees who believe they contracted the novel coronavirus on the job will likely face an uphill battle in proving that they became infected with COVID-19 because of their employer’s negligence or recklessness.
To prove a negligence claim, employees must prove that they got sick because the employer failed to keep them safe from harm. Traditionally an illness you can catch anywhere is not something for which you can hold your employer liable under a general negligence theory. Specifically, there are five elements that a plaintiff must prove in order to establish a claim of negligence: duty, breach of duty, causation in fact, proximate cause, and harm/damages.
Given that COVID-19 can be contracted from numerous places and can be passed from individuals who show no symptoms, this makes the element of causation very difficult. In other words, whether a nonprofit can be held liable if one of its employees infects another employee may depend on whether that employee can prove that the virus was contracted at work. Because COVID-19 is a pandemic, it would be difficult to be certain where the virus was contracted. Absent a large outbreak in the workplace, that will generally be difficult to prove.
An even steeper challenge for employees will be bringing a recklessness claim against an employer – a higher legal standard than negligence – which requires proof that an employer knew or should have known of conditions that would expose employees to the virus and failed to take appropriate corrective action.
Finally, most employers will comply with and justly rely on federal health privacy laws to avoid disclosures regarding their employees’ health. This will likely run headstrong into the fear of employees being around their co-workers and not knowing whether or not they have been exposed.
State Workers’ Compensation Laws
This is all presuming that employee claims are not blocked by state workers’ compensation laws that generally prevent employees from filing private lawsuits for workplace injuries.
Many employees may not be allowed to bring negligence or other “tort” lawsuits against their employers because of state laws that mandate workers’ compensation as the “exclusive remedy” for workplace injuries. These laws cover many, but not all, workplaces.
Each state offers its own standards for getting around workers’ compensation claims.
Employees covered by workers’ compensation laws can bring separate personal-injury lawsuits in limited circumstances, such as where an employee is harmed by an employer’s willful misconduct or “gross” negligence – both of which are even harder for employees to prove because they must show intentional harm or conscious disregard by employers.
Workers’ compensation insurance is maintained by most employers, designed to fund the costs of workers’ compensation claims. Be sure that your organization’s insurance policy has a sufficient limit of liability and/or that you have an umbrella policy that will supplement coverage.
As has been widely reported, the business community has been raising the red flag about a rash of potential personal injury and wrong death lawsuits filed by employees or their families and has been lobbying Congress and the Trump administration to protect employers from such claims. The Trump administration and the Republican leadership in the U.S. Senate have generally sided with such concerns, while the Democratic leadership in the U.S. House of Representatives has generally stated its opposition to such employer protections due to the adverse effect on employee rights.
Even if no new COVID-related federal protections for employers from employee claims are enacted by Congress this year, for all of the reasons described above, it will remain difficult for employees to win these cases. That being said, nonprofits have every legal, moral and other incentive to do everything possible to protect their employees as offices start to reopen.
Steps to Minimize Nonprofits’ Liability Risk as Employers
Compliance with standards established by OSHA and the federal Centers for Disease Control and Prevention (CDC) can help protect employers from a liability perspective. It is critical to follow the advice that has been issued to date from OSHA (in March 2020 and June 2020) and the CDC, as well as guidance on workplace safety protocols from the states, cities and counties in which the nonprofit’s offices are located. Whether the guidance is mandatory or just advisory in nature, it all helps to inform what is the appropriate “standard of care” at the time – and thus what employers must do to avoid being negligent with respect to their employees.
Both in response to the OSHA and CDC guidance and beyond, many nonprofits are already exploring other steps they can and should take in their offices to help minimize the potential spread of the virus, such as by the staggered return of employees to the office, frequent deep cleaning of the office, installing high dividers between cubicles, providing adequately spaced working conditions, limiting insufficiently spaced or any gatherings in common areas, offering ready access to hand sanitizer, requiring the wearing of masks in certain areas of the office (and perhaps providing them to employees), and requiring employees to stay home if they are sick or have been recently exposed to other COVID-positive individuals.
In addition, if your organization rents its office space, be sure to attempt to get your landlord to undertake COVID risk mitigation measures, such as upgrading its air ventilation systems and filters, mandating (through signage and otherwise) appropriate social distancing in lobbies, elevators and other common areas of the building , and undertaking more frequent sanitation of common areas, among other measures. Doing so will not only help to protect your staff but it will help to mitigate your organization’s liability risks.
The key for employers from a liability perspective is to avoid any working conditions that pose an imminent risk to employees, and to be sure to always adhere to – at a minimum –whatever is deemed to be the standard of care in the United States and in that particular state, city and/or county. Some of that will come from government mandates and non-binding guidance, but some will come from recommendations promulgated by workplace safety organizations and from common and best practices more generally.
Of course, regular, clear communication and enforcement of workplace health and safety rules to all employees is critical. In addition, a slow and gradual return to the workplace that does not force employees to put themselves in risky situations may be the safest approach for nonprofits and their workforces. Allowing employees to return voluntarily will most definitely help to mitigate employers’ risk of legal claims, and employees at higher risk for COVID-related adverse effects and complications should be given the most leeway.
Beyond the physical office space is the question of employee travel – both locally in the city or town in which the employee works and out of the region, state or country. Here, for the short term at least, it is generally advisable to restrict or ban any work-related travel that is not absolutely essential. And when travel is deemed essential, great care should be taken to follow every best practice known, available and practicable.
Finally, if a nonprofit’s employee becomes sick and is or may be infected with COVID-19, the employee should be required to self-quarantine at home (with appropriate medical care and treatment), and the nonprofit should consider relaxing its leave policies if needed to encourage and facilitate the employee’s ability to remain at home. Mandatory self-quarantine for some period of time also should be required of those employees who come into close contact with someone else known to be infected with the virus.
Employee Liability Waivers
Nonprofit employers may wonder whether, to limit their potential liability, they can ask employees to sign advance waivers of liability before bringing them back to work. Prospective waivers of claims by employees in favor of their employers are generally considered void as against public policy because of the unequal bargaining power of the parties, and as such, are typically unenforceable. Moreover, employees cannot lawfully be asked to waive their access to their workers’ compensation benefits. In short, advance waivers of liability are not a realistic option to minimize possible employer liability in this environment.
As the nation’s economy slowly reopens and as nonprofits contemplate the reopening of their own workplaces, there are incredibly difficult choices, decisions and risks to take into account. These considerations are driven as much by a compassionate desire by nonprofits to protect the health and safety of their employees as they are by the understandable need to mitigate their liability risks as an employer. Unfortunately, there are no clear-cut, silver-bullet solutions. The only thing that is certain is that governmental orders and best practices in this area will continue to evolve rapidly, and that nonprofits will need to pay close attention and adapt in order to best protect their workforces and themselves in this scary, brave new world.
For more information, contact the author at jtenenbaum@TenenbaumLegal.com.