While the Coronavirus Pandemic is unprecedented, employers in Indiana and Illinois remain legally mandated to keep workers safe from exposure to the potentially deadly COVID-19 virus. Employers have a duty of care to keep employees safe from harm while on the job even when faced with novel and unexpected dangers.
Workers should expect these protections while they are at work; unfortunately, employers and businesses may not be taking proper care as a reasonable and prudent member of their industry to keep employees safe. This is true even though there is clear guidance regarding COVID protections on the internet, with new advancements in the protection against exposure being announced with regularity.
Employers in Illinois and Indiana should be aware of the following information, available online to the public, as they educate themselves on how best to protect workers from COVID as part of their legally defined duty of care to employees. Failure to be aware of the following may evidence a breach of the legal duty of care to a worker in a resulting COVID-injury claim.
1. CDC Expected to Approve Shorter Time to Be in COVID Quarantine
The Centers for Disease Control and Prevention (CDC) is expected to announce a change to the number of days required for quarantine when someone has been exposed to the Coronavirus. For many months now, the standard time period for COVID quarantine has been two weeks, or fourteen (14) days.
The CDC is considering shortening the COVID quarantine period to seven (7) to ten (10) days.
For more, read “CDC Finalizing Recommendation to Shorten Covid-19 Quarantines,” written by Betsy McKay and published in the Wall Street Journal on November 24, 2020, and “CDC Considering Shorter Coronavirus Quarantine Recommendation,” written by Reid Wilson and published by The Hill on November 24, 2020.
2. FDA Announces Self-Testing at Home for COVID
On November 19, 2020, the Food and Drug Administration (FDA) issued an emergency use authorization (EUA) for the Lucira COVID-19 All-In-One Test Kit. This is the first COVID-19 diagnostic test that allows someone to test at home for the Coronavirus using nasal swabs. The Lucira test is not only convenient, but the FDA explains that it will give a fast response.
The new COVID self-test at home kit is authorized for anyone who is 14 years or older and who may have symptoms of COVID-19.
From FDA Center for Devices and Radiological Health Director Jeff Shuren, M.D.:
“Today’s authorization for a complete at-home test is a significant step toward FDA’s nationwide response to COVID-19. A test that can be fully administered entirely outside of a lab or healthcare setting has always been a major priority for the FDA to address the pandemic. Now, more Americans who may have COVID-19 will be able to take immediate action, based on their results, to protect themselves and those around them. We look forward to proactively working with test developers to support the availability of more at-home test options.”
3. Plans Underway for COVID Vaccine Approval and Distribution
On December 1, 2020, the CDC will be discussing the steps that will be taken by the federal government once a Coronavirus Vaccine has been approved for use and distribution in the United States. Among the concerns for the CDC is deciding which groups should be given priority to receive the COVID vaccination, given the expectation that supplies will be limited in the first few months after the vaccine’s approval for use.
According to the CDC, the National Academies of Sciences, Engineering, and Medicine (NASEM) will provide guidance to the Advisory Committee on Immunization Practices (ACIP) on “how to give these limited vaccines in a fair, ethical, and transparent way.” The ACIP will then issue recommendations to the CDC on COVID Vaccine distribution.
The COVID Vaccine may be available before year-end. Medical experts are reported to be suggesting to the CDC that COVID vaccine priorities should be, in descending order of priority:
- health care workers;
- essential workers;
- high-risk medical conditions; and
- elders (65 years or older).
For more, read “CDC Panel Plans Meeting to Discuss Distribution of COVID-19 Vaccine,” written by Elizabeth Elizalde and published by the New York Post on November 27, 2020.
4. OSHA Inspections for COVID Violations Continue
As of November 19, 2020, the Occupational Safety and Health Administration (OSHA) has issued 244 citations for COVID violations across the country, with a total in penalties of $3,301,932. This covers the entire time period for the Coronavirus Pandemic.
There does not seem to be much of a financial threat to employers regarding COVID regulatory violations and penalties imposed by the federal government.
So far, only three (3) entries on the complete OSHA COVID Citation list come from Indiana and twelve (12) are from Illinois. Read the updated Citation list here.
For more on the effectiveness of OSHA Inspections on Coronavirus Compliance, read “Coronavirus Pandemic: Senators Challenge OSHA’s Effectiveness in Making Sure Businesses Are Protecting Workers Against COVID-19.”
5. OSHA’s Overview for Employers and Businesses
An overview is provided by the Department of Labor on the OSHA website for both workers and employers regarding the Coronavirus Pandemic. From that overview, employers should know the following:
A. The COVID Duty of Care for Employers Officially Began in March 2020.
The World Health Organization (WHO) designated COVID-19 as a pandemic on March 11, 2020. Two days later, on March 13, 2020, the President of the United States declared the COVID-19 pandemic a national emergency.
B. There is an Understood and Defined Duty to Protect Workers from Exposure to COVID
Insofar as the Coronavirus, the current understanding for purposes of keeping people safe from exposure to COVID is as follows (quoting from the CDC):
- Person-to-person spread most likely occurs during close (within 6 feet) contact with an infected person.
- Person-to-person spread is thought to occur mainly via droplets of respiratory secretions produced when an infected person coughs or sneezes, similar to how influenza and other respiratory diseases spread. There is also growing evidence of transmission risk from infected people who are asymptomatic (without symptoms) or before the onset of recognized symptoms.
- COVID-19 can also be transmitted by touching surfaces or objects contaminated with SARS-CoV-2 (the virus that causes the disease), then touching their mouth, nose, or possibly the eyes.
Accordingly, the CDC warns of the following “risk factors for worker exposure” that include:
- Job duties involving close (within 6 feet) contact with infected people or other sources of the virus. This includes close contact with suspected or confirmed COVID-19 patients or their infectious body fluids in the healthcare, postmortem care, and laboratory sectors.
- In almost all sectors, job duties involving either sustained close contact (within 6 feet) or frequent close contact with coworkers, customers, and/or members of the general public who may be infected with the virus without knowing it.
- Social conditions conducive to transmission, including in areas of high population density or where people have frequent and/or prolonged close contact, either in the community or in the workplace. This includes situations in which workers live in shared housing or gather in groups, especially without maintaining social distancing.
C. Different Workers Have Different Defined Levels of Exposure Risk and Duties of Care
OSHA has developed guidance for classifying worker exposure risks into (1) lower (caution); (2) medium; (3) high, and (4) very high risk categories. The agency gives employers specific guidance as well as resources for protecting workers who perform job tasks at each risk level.
Moreover, OSHA explains to employers that it is the tasks undertaken by the worker that must be the focus of the employer’s duty of care, not the general job description.
As workers’ job duties change or they perform different tasks in the course of their duties, they may move from one exposure risk level to another ….. [such as]:
- Other types of healthcare positions (including pre-hospital and medical transport workers, allied medical care professionals, and support staff);
- Emergency response (e.g., emergency medical services workers, firefighters, and law enforcement officers);
- Other postmortem care positions (e.g., funeral directors);
- Research or production laboratory workers;
- Airline operations;
- Retail operations, particularly those in critical and/or high-customer-volume environments;
- Border protection and transportation security;
- Construction;
- Correctional facility operations;
- Solid waste and wastewater management;
- Environmental (i.e., janitorial) services;
- In-home repair services;
- Travel to areas where the virus is spreading;
- Pastoral, social, or public health workers in jobs requiring contact with community members who may spread the virus; and
- Transit and delivery drivers, depending on their degree of close contacts with the public.
Coronavirus Injury Claims in Indiana and Illinois: Exposure on the Job and Employer Liability
Any worker who becomes ill and suffers harm as a result of COVID-19 may have a legal claim against his or her employer if exposure occurred on the job. Employers have no defense in the argument that they are unaware of the proper steps to take to protect their workers on the work site, particularly now that several months have passed since the Pandemic began. See, Coronavirus Alerts from OSHA: Guidance Given to Employers for Protecting Workers from COVID-19 but No New Legal Standards Issued.
It is the responsibility of the employer to understand the steps that should be taken to keep employees safe while they are at work. This responsibility may include continued education in current safety protocols, especially for COVID-19 exposure, and a changing safety procedure on the job site.
For more on Employer COVID Injury Claims, see:
- OSHA Releases List of Most Common COVID Safety Violations by Employers
- Employers’ Duty of Care When Worker Discovered to Have COVID-19: Revised CDC Close Contact Definition
- Coronavirus: Employer Liability for Worker’s Family Injuries Caused by COVID-19 Exposure
- COVID Whistleblowers: When Employers Recklessly Fail to Protect Against Coronavirus Exposure
- Coronavirus: COVID Violations, OSHA Inspections, and Employer Liability Claims in Indiana and Illinois.
If you or a loved one has suffered from Coronavirus exposure, then the state laws of Indiana and Illinois may provide an avenue for justice against an employer who has breached a long-established duty of employee safety and care. Please be careful out there!
