Recently I was approached by a client whose employer was mandating a return to work from the office and also requiring that employees execute a waiver and release providing that the employer was not liable in the event that the employee contacted COVID-19. Although this was a first, it was not surprising. As States begin to loosen restrictions on business operations in phrased re-openings, employers are grappling with the inherent risks associated with bringing employees back into shared workspaces. Beyond establishing and enforcing protocols, large employers like McDonald’s are now facing class action suits alleging systemic failures to impose adequate safety practices.
Does this really mean that an employer can (or should) request that their employees execute a release from liability if they contract COVID-19 or suffer coronavirus related injuries? In short, while an employer may be allowed to request that an employee sign a waiver and release, it is not a practice that I would recommend and, in any event, an employee may still be able to bring a workers compensation claim.
Employers have certain non-waivable responsibilities under OSHA, the CDC, and the ADA. All employers retain a general duty under the Occupational Safety and Health Act’s Section 5(a)(1) to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. OSHA has issued guidelines which establish categories of occupations relevant to exposure risk, mandate PPE for certain sectors of employees, and provide template protocols for businesses operating during the pandemic. These guidelines also detail engineering and administrative controls employers can adopt to mitigate contagion spread and better ensure compliance with their broad Section 5 duties. Employers are bound by these guidelines and cannot summarily dismiss them by having their employees sign a waiver.
Moreover, in many States, including Maryland, an employee claim arising out of COVID-19 related injuries would likely be handled under workman’s compensation and would be a matter for OSHA, regardless of whether an employee had signed a broad release. This recently played out on the Federal level where a Federal Judge dismissed a case brought by workers in Missouri accusing Smithfield Foods, Inc. of failing to protect employees, finding that OSHA and the Department of Labor was the appropriate forum such a case. And while, in some circumstances, an employee may attempt to bypass this system and pursue civil damages, there already is proposed Congressional legislation that would limit an employee’s ability to sue an employer for damages arising out of COVID-19 related injuries.
Now, whether contracting COVID-19 or suffering from other coronavirus related injuries is considered an “occupational disease” as described by the Maryland Labor code is a matter that will probably be litigated in the coming months. The Maryland Courts apply a two prong test examining (i) the nature of the employment and whether that “includes the hazards of the ailment the employee suffers from to a greater degree than that present in general employment” and (ii) whether the employees job functions are such that they are exposed to those hazards. For essential workers in the medical profession this seems like it may be a no-brainer but we really won’t know until someone brings the claim and it is either upheld or dismissed by the Courts. We also are going to have to look at what this means for non-essential workers as the Country begins to reopen and employees are required to return to work.
Employers may also want to be wary of having an employee sign a release as it may be used against them in arguing whether they are liable for the injuries or that the coronavirus should be considered an occupational disease. Presently, there is no fool-proof method of determining the precise moment of coronavirus transmission. An employee may contract COVID-19 from their cubicle mate or in the grocery store and there is no way of accurately determining which occurred or which occurred first. However, if the employer has requested that all employees execute a release, is the employer implicitly acknowledging that COVID-19 is a hazard in their workplace that an employee would suffer from to a greater degree than in general employment and that their job functions expose them to those hazards?
But what if you are a federal employee? Federal employees are also entitled to workers’ compensation coverage under the Federal Employees’ Compensation Act (“FECA”). Under FECA, there is an implicit recognition that high-risk employees, such as first-responders and frontline medical and health professionals, are at a higher risk of exposure to COVID-19. The Department of Labor has created new, specific procedures for addressing these claims which make it easier on the employee to submit a claim. Employees who are not considered high-risk will have to submit a factual statement and any available support to show that their exposure occurred incident to their employment. Non high-risk employees will also have to have their employer support their claim.
Employee’s should also be aware that because of the pandemic, employers may make certain medical inquiries that the ADA would otherwise prohibit. For example, employers may require employees undergo COVID-19 testing if the employer reasonably and objectively believes an employee’s current medical condition either impairs her ability to perform essential job functions or poses a direct threat to the health or safety of herself or others. The Equal Employment Opportunity Commission (EEOC) has stated that COVID-19 may be deemed a direct threat, and has specifically opined that the ADA’s requirement that any mandatory medical test of employees be “job related and consistent with business necessity” may be satisfied to allow an employer to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. The EEOC has indicated employers should ensure mandated tests are accurate and reliable in accordance with FDA, CDC, and other public health authority guidelines.
Employees and Employers alike should frequently consult the CDC best practices and guidelines for businesses and workplaces as phased openings begin across the nation. Any employer requiring that employees report to a physical location should be practicing these guidelines, such as maintaining social distancing, staggering start times, and limiting travel and visitors.
At JDKatz, PC we are here to assist you in a safe return to work. If you would like to discuss return to work planning or potential claims you may have arising out of COVID-19 injuries, please feel free to contact Elizabeth J. McInturff at (240) 743-5410.
with Maria L. Stratienko, Law Clerk