Can Employers Be Sued if Employees Get Covid-19?

Generally, if someone harms another person or their behavior and negligence leads another person to be harmed, they might be held legally responsible. If you’re in a car accident, for example, and another driver’s negligence is responsible for your injuries you might hire a personal injury lawyer and sue for damages.

What about the current situation with covid-19?

There is a lot of debate going on about who is essential and who’s non-essential as far as employees, and what employer’s responsibilities are to keep their employees safe during this time.

If an employee gets sick and they believe they were infected while they were at work, do they have legal recourse against their employer?

The following are things to know as far as employers, employees and covid-19 right now.

General Duty Clause

According to the Occupational Safety and Health Act, there is a general duty clause. Under this clause, employers must provide each of their employees a place of employment that’s free from recognized hazard and that could cause serious harm or death to employees.

There aren’t, however, specific standards from the Occupational Health and Safety Administration regarding covid-19.

There is the potential that under the clause employers could face certain risks if they don’t take reasonable steps to keep their workplace safe.

What these reasonable steps are can be a bit more of a gray area.

Employers should at a minimum regularly communicate best practices to their employees and reinforce existing and temporary rules relating to health and safety.

What Should Employers Do If an Employee Gets Sick?

If you are currently open for business and one of your employees gets sick and has a confirmed case of covid-19, it can be a bit of a balancing act. You have to maintain the employee’s privacy but you also have to let your other employees know because of the potential exposure.

If your employee gets sick and you find that out, you should first try to be as lenient as possible with them about paid time off and using sick leave. Many employers are relaxing their sick leave policies during this.

Employers should also provide an alert to all employees, without include the employee’s name or personal information. However, you can let employees know when and where the employee was working.

What About Liability?

The concept of liability for employers whose employees potentially become sick is a difficult one.

The employee would really have to prove that they got the virus while they were at work, and due to the fact that we’re facing a widespread pandemic, that could be a challenge. It would be very difficult for most employees to ever prove they were sickened at work.

Is it impossible? No, but difficult.

Other Legal Considerations

The following are some other legal considerations to keep in mind if you are an employer or an employee:

  • Under the Family & Medical Leave Act (FMLA), qualified employees can take up to 12 weeks of unpaid leave within 12 months if they have a serious health condition or they have an immediate family member who needs care.
  • Under federal legislation, there are guidelines for employers as far as employees taking sick leave as well. For example, employees can take emergency sick leave if they have to quarantine or isolate because of coronavirus, or care for someone with the virus. Under these circumstances, an employee’s rate of pay depends on specific circumstances.
  • Employers can request that employees, even if they aren’t sick, work from home as long as they aren’t doing so under any policies that could be see as discriminatory. However, you can’t specifically ask an employee over the age of 70 to work from home just because of their age, because age is a federally protected class.
  • An employer can’t take retaliation against an employee who refuses to work on something they see as unsafe. Employers also can’t discipline employees for making safety complaints. That doesn’t mean there aren’t a lot of gray areas here too, however. For example, if a reasonable employee would feel the assignment was safe, then the employee might not be protected in that case.

Finally, another question employees have is whether or not their employer can take their temperature at work. This is another sticky area because under the Americans with Disabilities Act if you take an employee’s temperature it’s typically considered a medical exam, which is outside of what an employer can be.

In the instance of the coronavirus epidemic, this might not hold true though, but many health experts and lawyers still warn employers against doing it.

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