Employers’ Liability If Workers Exposed to COVID-19 on the Job: OSHA
Employers in Indiana and Illinois (and elsewhere in the nation) are legally required to protect the health and safety of their employees while at work. For more, read our earlier discussion in “Employers’ Duty to Protect Workers during Coronavirus Outbreak.”
New OSHA COVID-19 Workplace Poster Released: 10 Steps for Employers
On April 8, 2020, the Occupational Safety and Health Administration (OSHA) published its “OSHA Poster for Reducing Workplace Exposure to Coronavirus” in both English and Spanish, listing ten steps employers are to take to minimize the risk of workers contracting the coronavirus.
View the April 2020 OSHA Workplace Poster for Reducing Coronavirus Exposure here.
Designed to be posted at work sites and shared online, the new OSHA poster lists ten “infection prevention measures” for employers to take in order to protect the safety and health of workers from COVID-19 infection.
The Employer’s Ten Steps to Protect Workers from Coronavirus are:
- Encourage workers to stay home if sick.
- Encourage respiratory etiquette, including covering coughs and sneezes.
- Provide a place to wash hands or alcohol-based hand rubs containing at least 60% alcohol.
- Limit worksite access to only essential workers, if possible.
- Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible.
- Discourage workers from using other workers’ phones, desks, or other work tools and equipment
- Regularly clean and disinfect surfaces, equipment, and other elements of the work environment.
- Use Environmental Protection Agency (EPA)-approved cleaning chemicals with label claims against the coronavirus.
- Follow the manufacturer’s instructions for use of all cleaning and disinfection products.
- Encourage workers to report any safety and health concerns.
OSHA Clarifies Existing OSHA Standards Apply to COVID19 Duties to Keep Workers Safe
OSHA offers more information at its COVID-19 webpage. Clearly shown in its “Quick Facts” sidebar is the clarification that “[e]xisting OSHA standards apply to protecting workers from the novel coronavirus, COVID-19.”
OSHA’s position regarding employer duties of care toward employees during the Coronavirus Pandemic is that existing duties defined by federal law apply in this unprecedented situation. Specific standards pertaining to COVID19 have not been issued.
Guidance has been provided to employers on how current federal regulations define the employer’s duties of care regarding the coronavirus. A hyperlink on the COVID-19 webpage takes the reader to the corresponding OSHA COVID19 Standards page.
OSHA COVID19 Standards for Employers
OSHA identifies the COVID19 Standards as the employer’s duties involving (1) recordkeeping and reporting occupational injuries and illness (29 CFR 1904) as well as (2) the General Industry requirements of 29 CFR 1910, which include:
- 29 CFR 1910 Subpart I – Personal Protective Equipment (eye protection, face protection, respiratory protection, hand protection);
- 29 CFR 1910 Subpart J – General Environmental Controls (sanitation); and
- 29 CFR 1910 Subpart Z – Toxic and Hazardous Substances (access to employee exposure and medical records; bloodborne pathogens; hazard communication, occupational exposure to hazardous chemicals in laboratories).
Again, these are not newly drafted regulations that employers must learn and apply in their work sites. Employers should be well-acquainted with these provisions and how they define management’s duty of care to keep workers safe on the job.
Employer’s General Duty Defined in the Occupational Safety and Health Act
These federal regulations work in tandem with the “general duty clause” found in Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1).
Under the Act’s “general duty clause,” employers are required to “furnish to each of his 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 his employees.”
If employers in Indiana and Illinois fail to meet this duty of care by protecting workers on the job and preventing employees’ exposure to COVID19, then they may be held liable for their employees’ resulting illness and injuries.
Temporary OSHA Guidance Regarding Respirators during COVID19 Pandemic
While no new standards are being issued, OSHA has issued guidance memoranda regarding the Respiratory Protection standard (29 CFR 1910.134) that apply to the “current public health crisis” involving respirators made available to health care workers. These are:
- Required annual fit-testing in healthcare (issued March 14, 2020);
- Supply shortages of disposable N95 filtering facepiece respirators (FFRs) (issued April 3, 2020); and
- Use of respiratory protection equipment certified under standards of other countries (issued April 3, 2020).
Other Employer Duties of Care to Keep Workers Safe from COVID19
Of course, other guidance is being provided to employers during the Coronavirus Epidemic that may also result in liability if the employer chooses to ignore their warnings. For instance, it may be argued that an employer who disregards guidance on the protection of workers published by the Centers for Disease Control and Prevention may have violated its duty of care to a worker who becomes infected with COVID-19.
This may also be true of any guidance provided by the state government (Indiana or Illinois) as well as municipal or county officials where employees are on the job. For more, read the COVID19 guidance to employers provided by the Indiana Department of Labor and the Illinois Department of Public Health.
OSHA-Approved State Plans of Indiana and Illinois
Both Indiana and Illinois have OSHA-Approved State Plans. Indiana’s State Plan covers (1) most private sector workers and (2) all state and (3) local government workers. Illinois’ State Plan covers only state and local government workers, with Illinois’ private sector covered by federal OSHA.
Insofar as the employers’ specific duties regarding the safety and health of workers in Illinois and Indiana, their duties of care will be at the minimum of those defined in the federal OSHA’s COVID19 discussion.
From OSHA: “State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.”
Employee Coronavirus Claims for Worker COVID-19 Injuries in Indiana and Illinois
Employers in Indiana and Illinois have a responsibility defined by law to keep their workers safe from harm on the job, and this includes protecting them from exposure to the coronavirus and contracting the potentially fatal COVID-19.
While this is an unprecedented time in our communities and our country, the legal duties of care placed upon employers to keep workers safe is longstanding. OSHA has not published new standards for this circumstance. Instead, it reminds employers of their existing duties to their employees under current federal law.
In Indiana and Illinois, workers who are seriously or fatally injured by the coronavirus because their employer failed in its duty of care to protect them from harm during this public health emergency may have legal claims to present to the employer. Duties defined under federal law as well as the state laws of Indiana and Illinois may provide avenues for justice to both the worker and their families for coronavirus exposure and infection.
Any worker who suffers harm as a result of being exposed to COVID-19 and suspects the exposure to coronavirus happened on the job should investigate potential lapses in his (or her) employer’s duty of care. Each case will be factually unique given this unprecedented pandemic — but the employer’s duties are clearly defined under the law.
For more, read: “Coronavirus: Truck Driver Dangers of Injury and Accident in Indiana and Illinois.”
The risk of exposure to the coronavirus is very real in both Illinois and Indiana, especially for workers in “essential jobs.” Employers must take every precaution to keep workers safe during this public health crisis. Please be careful out there!
