Existing employee safety laws can be applied to workers who are exposed to the coronavirus. While it is not yet clear exactly how insurance companies and courts will treat these claims, what is clear is that employers must take precautions to mitigate their liability for COVID-19 exposure in the workplace.
How to Minimize Your Liability for Exposure
In almost every type of civil case, the defendant’s conduct is measured against a standard of reasonable behavior. There are a few instances of strict liability, in which the defendant is liable no matter how reasonable their behavior, but these are limited to inherently dangerous scenarios that are clearly defined under existing torts law.
So that employers can be “reasonable” in getting employees back to work safely during this global health crisis, OSHA has issued basic guidelines for COVID-19 safety in the workplace. If an employer can demonstrate that it followed these guidelines, this is strong evidence that the employer was acting reasonably. Employers should also adhere to local health regulations in order to prove they acted reasonably in reopening safely.
A consistent recommendation from federal, state, and local government agencies is the use of proper personal protective equipment (PPE). In some cases, this is as simple as using cloth face coverings and sanitizing surfaces regularly. Other jobs require more extensive PPE that offers greater protection. Any job that involves interaction with the public will increase the employee’s risk of contracting the coronavirus. Be sure that your employees have ample access to all the PPE they need, and that your official policies encourage the use of PPE and regular handwashing.
How to Notify Your Staff If an Employee Tests Positive
If a worker tests positive for COVID-19, there are competing interests at stake. On the one hand, the worker has a right to privacy over personal health matters. On the other hand, your other workers have the right to know about conditions in the workplace that could endanger their own health. Employers must carefully weigh these competing interests if they want to avoid liability on either side.
First, it is essential to keep medical information confidential to the greatest extent possible. It is not usually necessary to tell workers exactly who has contracted COVID-19. Instead, you can
limit the distribution of this information to times and dates of exposure, or work areas that were exposed. In a small office, it might be easy for employees to figure out who was exposed, but this does not mean that the employer should reveal that information.
The ADA also requires employers to store confidential medical information separately from an employee’s personnel file. If a worker was exposed to COVID-19 and you obtained medical information about the condition, you must take steps to store this information separately and protect the confidential medical data.
Experienced Silicon Valley Lawyers to Help Mitigate Employer Liability Due to COVID-19
Many legal issues expose an employer to liability during the COVID-19 pandemic. The experienced Silicon Valley business lawyers at Structure Law Group can help your business plan for the coronavirus to reduce your risk of lawsuits. Call (408) 441-7500 or contact us through our website to schedule a consultation.