As the economy begins to transition back to its pre-pandemic state of affairs, many employers are wondering what will happen in the event that an employee contracts COVID-19. The concern is largely centered around liability and the answer is surprisingly unclear. While workers’ compensation laws have traditionally served as the exclusive remedy for an employee who is injured on the job, practitioners have suggested that businesses may still be susceptible to tort liability in the age of COVID-19. Courts are beginning to see COVID-related lawsuits, and judges across the country have been tasked with determining the duty of care that is owed to an employee. The current administrative framework is insufficient to address that legal question, and this lack of clarity can be resolved through the promulgation of an emergency temporary standard.
“We’re being asked to open up. To go out there and be warriors. We’re literally on the front lines but have no battle plans or proper ammunition or even working guns… [We need] some guidelines and direction so we can avoid litigation.”
“I tried to get my employer to follow social distancing, clean the bathrooms, and sanitize… But when I spoke up, they just ignored me and then they got mad at me for making problems. Now I am worried that I might be one of the first ones laid off. I need this job for my family.”
The statements above exemplify the concerns of two distinct groups within the labor market: employers and employees. The first remark represents an owner’s reservation to open up his business in the face of litigation. The latter statement highlights an employee’s reluctance to re-enter the workforce in light of the safety risks that accompany a pandemic. Lawmakers and policy analysts are aiming to equitably balance these dual considerations, and as this piece will suggest, this lack of clarity can be resolved through the promulgation of an emergency temporary standard.
The United States economy shut down as a result of the coronavirus outbreak and to mitigate the prospect of transmitting COVID-19, businesses complied with the shelter-in-place orders administered across the nation. More recently, states have begun lifting these stay-at-home orders, and firms are responding by reopening their doors to the public. However, many of the workers that previously allowed businesses to function are hesitant to transition back to the workplace.
Their misgivings largely stem from the new anxieties that surround work conditions and these fears are not unfounded either. An increase in COVID-19 cases will likely accompany the restoration of the economy. For example, Florida, Arizona, Texas, and California—states that took aggressive steps towards reopening— have since scaled back their efforts in response to surges in positive COVID-19 cases.
As a means of addressing this new reality, the Occupational Safety and Health Administration (OSHA) provided a set of guidelines and best practices for businesses to follow within the workplace. The primary issue is that these guidelines are only recommendations, and do not have the force of law. In fact, the opening line of OSHA’s recent directive begins with the following statement: “this guidance is not a standard or regulation, and it creates no new legal obligations.”
Although a lack of federal accountability has introduced uncertainty into the field of employment law, OSHA has at its disposal an administrative tool for exigent circumstances such as a pandemic—the emergency temporary standard. Under Title 29, Section 655(c) of the United States Code, OSHA shall1 issue an emergency temporary standard if employees are “exposed to [a] grave danger” from an occupational hazard. Such a standard must also be “necessary to protect employees from such [a] danger.”
While OSHA has repeatedly asserted that the current administrative apparatus sufficiently protects workers, there is a strong argument to be made that circumstances surrounding COVID-19 satisfy the elements of Section 655(c). As early as March, Democratic lawmakers called on OSHA to promulgate an emergency temporary standard. Labor unions have also advocated for a robust administrative response from OSHA. For example, the Association of Flight Attendants requested that federal agencies implement a face mask mandate that would penalize non-compliant passengers.
Additionally, one of the largest labor unions in the United States, the AFL-CIO, filed an emergency petition for a writ of mandamus on behalf of its 12.5 million members. The petition advocates for an emergency temporary standard that would protect “the life and health of millions of workers throughout the United States in grave danger from the deadly COVID-19 pandemic.” Unfortunately, the United States Court of Appeals for the District of Columbia Circuit deferred to OSHA’s regulatory approach by striking down the AFL-CIO’s request.
The key element being ignored in the push for an emergency temporary standard is that it would benefit both sides of the labor market. This rule would (1) hold employers accountable for noncompliance, (2) delineate clear directives to avoid litigation, and (3) alleviate the safety concerns that have dissuaded employee participation.
To illustrate the positive effect that an emergency temporary standard would have on the labor market, and specifically employer liability, legislators can refer to the “first known COVID-19 wrongful death lawsuit,” Evans v. Walmart. Wando Evans was an employee who had worked at Walmart for fifteen years. He began to display signs of the novel coronavirus in March, however, after informing managers about these symptoms, his warning was left unheeded. Evans was eventually sent home on March 23 and on March 25, he passed away. Four days later, an employee who worked in the same store also died after experiencing complications from COVID-19.
Walmart claims that it took preventative steps to protect its workers, including a deep cleaning of the Evergreen Park superstore. Evans’ estate on the other hand alleges that the company failed to comply with OSHA guidelines.
Under the current administrative framework, these diverging perspectives remain unresolved. However, an emergency temporary standard would equip the reviewing judiciary with a concrete list of requirements to establish the duty of care that Walmart owed to its employees. More importantly, it would incentivize an employer to take precautionary steps towards the creation of a safe work environment— reducing the likelihood of a death like Wando Evans’ from taking place altogether.
Photo by Nora Mortensen.
Colin is a J.D. candidate at the University of Virginia School of Law. His writing focuses on the intersection of law and public policy. Prior to law school, Colin served as an AmeriCorps member in the City Year Program, and more recently, he worked in Yale’s Housing Clinic as a Legal Services Organization Summer Fellow.
- Although “shall” is utilized throughout Section 655(c) of the OSH Act, this term may be more ambiguous than a strict textual interpretation would indicate. According to Black’s Law Dictionary, “this word is generally imperative or mandatory [in statutes]…but it may be construed as merely permissive or directory, (as equivalent to ‘may,’) to carry out the legislative intention.” However, even under a permissive interpretation of “shall,” the current public health crisis indicates that it is in the interest of the general population for OSHA to promulgate an emergency temporary standard at this time.