6/13/2021:
The Fundamentals focuses on technology, but there are times when other information also becomes important. This installment is from a May 6 New England Chapter webinar by labor attorney Katherine Witherspoon Fry, principal attorney at the firm of Offit Kurman, P.A., who discussed legal issues stemming from Covid-19. Katherine advises clients, litigates cases nationwide and has made two appearances before the U.S. Supreme Court. She also teaches HR law at the University of Delaware and is a Delaware Supreme Court appointed hearing officer and certified mediator. Below are edited opening comments and her responses to questions she fielded.
So, I wonder if we’re all tired of hearing about this. I know that I’m tired of talking about it. However, we have to keep dealing with it. The outlook for Covid-19 has gotten better, but it is not going away as an issue. I try to look at this as a new normal for now, and we have to manage our legal risks of dealing with it. I want to discuss legal liabilities for employers because it is important what to do before and after your workforce is vaccinated, best practices for returning to work after your illness or exposure, and pay for quarantining workers.
Unfortunately, we’ve already started seeing some new claims. Let’s start with OSHA, which is about to issue new regulations. I’m very, very excited about this because I’m an employment law geek. We’ve been begging for this since March 2020.
A few states have issued regulations, but most have not. I deal with some Virginia employers, and they have burdensome regulations, but at least they know that if they’re doing certain things, they’re not going to be in trouble. They’re not going to get sued by their employees or their customers, et cetera, if they’re following the regulations, and that’s it. New Jersey also has regulations.
So soon we’ll have OSHA regulations. The agency sent its Emergency Temporary Standard in late April to the White House. I can’t tell you today what it includes, but to date, OSHA has never mandated vaccinations, other than for a targeted requirement for certain employees to take a Hepatitis B vaccine. What I can tell you is that once we all know what the regulations are, follow them. Absolutely adhere to the regulations. Don’t forget about your state executive orders or emergency orders. Of note, the state might be stricter than OSHA. We have different variations going on, and you have to make sure that neither the state nor a federal agency like OSHA comes down on you.
I fully expect that the new regulations will lead to more new claims in the workers’ comp field from people alleging that they got Covid-19 at work. I was alarmed to see that some nationwide major insurance companies are denying these claims. This is bad news for employers, because we as employment counsel (I’ve been doing this for 26 years) were thinking that was not going to be the case, that workers’ comp would preclude people from directly suing their employers. When I heard that Walmart was being sued for wrongful death, I thought, “Oh, that’s probably going to be covered by workers’ comp.” But if courts agree that workers’ compensation insurance is not part of this, they are going to allow suits based upon plain ordinary negligence and willful, crazy-type decision making.
I expect cases brought for negligence and for personal injury, or wrongful death are going to be prevalent. We’ve already seen them against cruise ship lines by passengers and crew members, and against big companies like Amazon and Walmart. They all allege that employers knew that things needed to be locked down, way more protected, with way more PPE provided, and they just failed to do it. I am not saying I expect a flood of suits to be filed against the wire and cable industry, but could they happen? Possibly. I’d like to turn this over to your questions now.
Participant questions
Question: We have employees that we regularly remind to wear PPE, and we do write ups as needed. Are we liable to claims if that person is shown to have spread Covid?
Fry: Such litigation is classified as a negligence personal liability matter. It is definitely something that the workers’ compensation people have been fighting. The insurance companies don’t want to pay that. But the person in question has to prove that they got it at work. The company focus has to be on not just having policy, but making sure it is known and enforced. If you want to discipline an employee who does not follow policy, your policy should say exactly what the consequences are, and if there is a violation, you carry it out. Forget about getting sued. You don’t want the business shut. You don’t want the PR nightmare, and you don’t want people getting sick.
Question: Can we require employees to be vaccinated?
Fry: All the vaccines that are available now are emergency authorization only. They have not received final approval. But the answer is that you can mandate someone get those. They are considered available, and that has been sort of stated upfront that yes, you can mandate those for people
who don’t have disabilities or religious objections.
Question: Can we loosen up our strict policy of plant visitors without getting in trouble?
Fry: So again, I think as your state changes its policies and its regulations, then I think the prudent employer can say, “Hey, I’m going to watch what the state is doing, and I’m going to do what the state says I can do.” I have a client in Florida, which no longer has a statewide mask mandate, that wanted to hold an employer-sponsored event. We talked it over and we agreed that it’s not a good idea in municipalities that still mandate face coverings. It’s inviting trouble. You don’t want clients to get sick and end up suing you. You also have to consider who you are inviting, and how much control do you have over them. A gathering of no more than 10 people was considered safe, especially if it was outside, as the data show that only 10% of cases are contracted outside versus 90% inside. If they’re all vaccinated, then that should be perfectly safe according to the CDC. You also could quiz people. You could say, “If you’re vaccinated, you’re welcome to come to our event.” But what are you going to do? Card at the door? It’s so funny. Everyone gets these cards now. Are we going to have to use that for admission to the movies? Or for company events? We’re just going to have to trust people’s good judgment. Letting go a little bit is okay, as long as it’s done smartly. Have it outside. So yes, we can cautiously start loosening up a little bit. Just make sure you follow the rules of both the state and what OSHA says.
Question: If you have an employee or employees that test positive more than once, are companies liable to pay them each time that they have to take time off?
Fry: The Families First Coronavirus Response Act dictated that you pay people up to 80 hours. Under the American Rescue Plan Act, you may take the tax credit for those hours. More hours than that, you don’t get the tax credit. If you want, you can be the generous employer and provide more leave, if I understood the question correctly, it was for a person who tested positive twice, but it could be that an employee tests positive, and later, one of the family members tests positive, and now the employee has to watch them. After the 80 hours, you don’t have to give anything, but an employer might want to consider employee morale. Keeping boots on the ground and people in the plants is not so simple, so think about that too before you decide.
The Fundamentals is a column evolved from the Wire Association International's iconic Fundamentals of Wire Manufacturing program.
Editor’s note. On May 13, the CDC issued a finding that fully vaccinated people do not need to wear a mask. Fry added this comment, “The news from the CDC is very encouraging and may incentivize many employees to become vaccinated. However, if the state in which your employees are working mandates masks, don’t allow vaccinated people to unmask yet in the office, at company events or when meeting with people in public for business purposes. Continue to follow state guidance for health reasons and to demonstrate that your business isn’t negligent.”
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