*Monique Reyes
In an effort to prevent the spread of the prevalent COVID-19 virus, various businesses have changed their everyday performances by reducing their hours of operations and requiring employees to work remotely from home. Considering the unprecedented nature of the virus and the pandemic it has caused, the Federal government and States have responded on a day-by-day basis. In light of the uncertainty surrounding the virus, employers and courts across the country are more than likely to face questions contemplating the legal implications resulting from this pandemic, specifically as it relates to employment laws and employer liability.
One issue that is likely to arise is the employer’s liability for an employee who may catch the virus while on the job. Although the outbreak of the virus is a new issue, there are existing laws which may invoke employer liability as a result of the pandemic. One of those laws is the Occupational Safety and Health Act’s (OSHA) general duty clause which states that “each employer shall 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.”[1] Recently, on March 11, 2020, President Trump enacted the Families First Coronavirus Response Act which required OSHA “to issue an emergency temporary standard that requires certain employers to develop and implement a comprehensive infectious disease exposure control plan to protect health care workers.”[2] OSHA quickly released a Guidance on Preparing Workplaces for COVID-19, which set a standard for employers to follow rather than a requirement.[3] Notwithstanding the guidelines provided, legal professionals are already voicing their opinions regarding the risks employers may face pursuant to OSHA’s general duty clause and ways employers may potentially mitigate general liability risks.[4]
Despite these regulations, it is not clear whether employers will be absolved from liability if and when an employee can show that they contracted the virus through their employment. On the other hand, the Washington State Department of Labor & Industries (L&I) has answered some questions regarding Worker’s Compensation and the virus on its official website.[5] L&I states that healthcare providers and first responders may qualify for Worker’s Compensation but also makes a blanket statement that “in most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition,” providing little to no insight on what may become a highly litigated issue for years to come.[6] Additionally, the Center for Disease Control and Prevention (CDC) published guidelines for Americans to follow in hopes of slowing down the spread of the virus,[7] which heavily encouraged employees to work from home, thereby invoking a second issue relating to employment law: employer liability for injuries sustained while working remotely.
Aside from potential liability for its employees’ contraction of the virus, there remains the potential liability for injuries sustained by its employees while working remotely. These new work-from-home implementations are sure to be a long-lasting effect of the virus. Again, because of the pandemic’s unprecedented nature, the courts have not considered Worker’s Compensation claims in this regard. However, there are state court cases that discuss the topic of employer’s liability for injuries that an employee may sustain in their own home while performing duties related to their employment. In Florida, like the majority of states’ Worker’s Compensation laws, an employer must provide Worker’s Compensation to its employee where they have sustained injuries “arising out of work performed in the course and the scope of employment.”[8] Florida’s First Circuit Court of Appeals has held that a worker who has sustained injuries at home is not entitled to Worker’s Compensation when the “risk exists whether the claimant is at home working or whether [the claimant] is at home not working.”[9] Contrarily, Oregon, which defines a compensable injury as one “arising out of and in the court of employment”[10] finds an employee who has sustained injuries while working at home is entitled to worker’s compensation.[11] This discrepancy in the courts will likely be highlighted as more and more employees are injured while working remotely.
Overall, there are various legal uncertainties regarding the ongoing pandemic, but a major topic that will be heavily litigated and discussed in the foreseeable future is employment law. Not only are there issues regarding liability in connection with contraction of the virus and injuries sustained while working remotely, but there are various legitimate concerns related to retaliation, whistleblowing, discrimination, and unemployment that are already being voiced by affected employees throughout the country.
* J.D. Candidate, May 2020, Florida International University College of Law
[1] Occupational Safety & Health Act of 1970, Pub L. No. 91-596, § 5, 84 Stat. 1590.
[2] Families First Coronavirus Response Act, Pub. L. No. 16-127, 134 Stat. 178 (2020).
[3] Guidance on Preparing Workplaces for Covid-19, Department of Labor, https://www.osha.gov/Publications/OSHA3990.pdf.
[4] Amanda Robert, Can Companies Be Held Liable When Their Employees Fall Ill with the Coronavirus?, A.B.A. J. (Mar. 19, 2020), https://www.abajournal.com/web/article/attorneys-advise-companies-on-potential-coronavirus-related-liability?utm_source=salesforce_185960&utm_medium=email&utm_campaign=weekly_email&utm_medium=email&utm_source=salesforce_185960&sc_sid=03217819&utm_campaign=&promo=&utm_content=&additional4=&additional5=&sfmc_j=185960&sfmc_s=45239277&sfmc_l=1527&sfmc_jb=91&sfmc_mid=100027443&sfmc_u=6209414.
[5] Workers’ Compensation Coverage and Coronavirus (COVID-19) Common Questions, Wash. St. Dep’t Lab. & Industries, https://lni.wa.gov/agency/outreach/workers-compensation-coverage-and-coronavirus-covid-19-common-questions.
[6] Id. (emphasis in original).
[7] The President’s Coronavirus Guidelines For America: 30 Days to Slow the Spread, The White House (2020).
[8] Fla. Stat. § 44.09(1) (2020).
[9] See Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. Dist. Ct. App. 2019), reh’g denied (May 30, 2019), review denied, No. SC19-1044, 2019 WL 5546111 (Fla. Oct. 28, 2019) (denying an employee worker’s compensation where she tripped on her dog while taking a coffee break in her kitchen because the injury did not “arise from” her employment as a telemarketer).
[10] Or. Rev. Stat. Ann. § 656.005 (West 2020).
[11] See Sandberg v. JC Penney Co. Inc., 260 P.3d 495 (Or. Ct. App. 2011) (finding that an employee who tripped on the way to her garage was entitled to worker’s compensation because retrieving fabric from her garage “arose from” her employment as a custom decorator for JC Penney).