Employers Face Potential Covid-19 Related Lawsuits by Employees, OSHA and EEOC if Workplace Safety and Leave Rules Are Not Followed

Posted November 9, 2020

  • Employers Face Potential Covid-19 Related Lawsuits by Employees, OSHA and EEOC if Workplace Safety and Leave Rules Are Not Followed

“An ounce of prevention is worth a pound of cure,” wrote Benjamin Franklin in the context of ravaging rowhouse fires caused by those who failed to properly tend to their fireplaces.  This advice still holds true today especially as it relates to the spread of Covid-19 in the workplace.  Employers have a legal duty to ensure workplace safety and the breach of duty can lead not only to lost productivity, but also significant legal liability, fines, consequential damages and closure orders.  Employers are urged to take steps to safeguard against the transmission of Covid-19 among their employees and heed the advice of the Centers for Disease Control, the Occupational Health and Safety Commission and Executive Orders which define standards of care in the workplace.

The CDC recently updated its guidance stating a person should be considered to have had a close contact Covid-19 exposure if the person was within six feet of an infected individual “for a cumulative total of 15 minutes or more over a 24-hour period.”  The CDC defines close contact as starting from two days prior to the infected person’s onset of symptoms or positive COVID-19 test, whichever occurs first, until the time the infected person meets the CDC’s criteria for discontinuing home isolation.  As cold weather hits, this updated guidance will likely increase the number of employees who will need to be sent home for quarantine following a COVID-19 case. Under the CDC’s critical infrastructure guidelines however, some employers may continue to permit critical infrastructure workers to work onsite following such an exposure so long as the exposed workers remain asymptomatic.

Additionally, Governor Murphy signed Executive Order 192 (EO 192) mandating new policies on all employers effective 6:00 a.m. on Thursday, November 5, 2020. Notably, EO 192 outlines masking requirements, temperature checks before each shift, symptom analysis, and self-certifications among other requirements. EO 192 directs employers to follow “guidelines and directives issued by the New Jersey DOH, the CDC and the Occupational Safety and Health Administration, as applicable, for maintaining a clean, safe and healthy work environment.” Violations of EO 192 include penalties up to a disorderly person’s offense with up to six months in jail and/or $1,000 in fines. Further, the New Jersey DOH has the power to close businesses that violate the Order.

These penalties are only the tip of the iceberg as to what employers could potentially face.  OSHA has already fined businesses over $2 million, and this number is likely to grow significantly. In addition, trial attorneys are now getting in on the action suing employers for negligence on behalf of employees, business invitees and their families. Employers also need to be cognizant of paid sick and family leave laws and reasonable accommodation rules under the Americans With Disabilities Act which if not followed may lead to significant liability and class action exposure.

Don’t let Covid-19 related liability spread through your workplace like loose embers of a fire.  Now more than ever is the time for employers to confer with legal counsel to help them navigate these ever-changing workplace regulations so they can reduce their exposure to possible claims in the future.  We stand by the old adage, “an ounce of prevention is worth a pound of cure.”  Please contact Andrew Kinsey at or call 908-454-8300 if we may be of any assistance.

 

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