Can an employer really get in trouble if an employee gets COVID? I mean, COVID is airborne, and it’s all around. How can anyone really know exactly how someone gets COVID? Just because your employee has COVID, doesn’t mean s/he got it from work, right? Even if s/he did get COVID at work, that doesn’t mean that you did anything wrong, does it? If the experts can’t even agree on how to stop the spread of COVID, how can you be expected to do so? How can you be held responsible if one or more of your employees get COVID? I hear these questions a lot. In many cases, they are excellent questions. The answer, of course, is, “Well it depends…” Can an employer be liable if employees get COVID? Yes, possibly, under the right facts. So what are the right facts? Let’s have a look at just such a case and see what takeaways might be helpful. It’s not a court case. That probably doesn’t matter though. California’s Division of Occupational Safety and Health has just issued significant fines to Smithfield Foods, owner of the Farmer John Meatpacking plant in Vernon, California, and to temporary staffing agency CitiStaff Solutions, after reports of more than 300 COVID cases and many hospitalizations.
According to reports, the meatpacking plant did not follow regulations. The factory found itself on the State’s radar in May. Allegedly, the factory was not using face masks or social distancing on production lines, where thousands of pigs are slaughtered to make pork products. Workers alerted their union, United Food and Commercial Workers Local 770, which in turn alerted State authorities. According to UFCW 770, 17% of workers tested positive for coronavirus. Smithfield allegedly failed to investigate or notify employees of potential exposure before they reported for work, and ignored workers’ concerns. The recommended citations (which Smithfield, not surprisingly, plans to appeal) are $58,000 for Smithfield and almost $47,000 for CitiStaff Solutions. For what it’s worth, this is not the only Smithfield facility to face such issues. The federal OSHA authorities fined is Sioux Falls, SD facility $13,494 in September after 1300 of its workers contracted COVID and 4 workers died in the spring. That plant was actually closed for two weeks in April but has since reopened.
OK, so what can we glean from this case? Here are some takeaways:
- As we may already realize, some industries carry more risk of COVID exposure. You probably don’t need me to tell you that the healthcare sector is a prime example. The meatpacking industry is another. Anyplace where there tends to be more close physical contact between people will likely carry more risk. Employers in higher-contact, higher-risk industries will certainly need to take (more) precautions.
- Regardless of whether your business would be considered higher-risk, however, once you do become aware of exposure, or potential exposure, you will need to take adequate steps to protect your employees. If you choose not to do so, you cannot be surprised or upset when your employees either report you to state or federal authorities (as these employees did) or file suit.
- As this case illustrates, it’s not necessarily lawsuits that you need to fear. Federal and State OSHA authorities are taking COVID exposure seriously — and they are doing all they can to make sure you do, too.
- Find out if any federal or state OSHA requirements or recommendations apply to your business — and follow them. Document all efforts you make to follow those requirements/recommendations. If you do learn of any employees contracting COVID, make sure they leave the workplace and follow CDC guidelines regarding allowing those employees to return to work.
- Alert any employees about potential COVID exposure at work and take their concerns seriously.
- Consider that you may be a joint employer. If so, you may share liability for employees’ exposure to COVID even if those employees are not actually on your payroll, or they are not working on your premises. The staffing agency in this case sent employees to a client, and apparently knew or had reason to know of the exposure, and was found not to have taken adequate steps to protect those workers it sent to the factory.
- I know you’re tired of hearing about COVID. I know you’re tired of having to live with restrictions, That said, ignoring this very real threat or wishing it away will not make it go away. Ignoring it will probably ensure that it will be with us longer — and claim more lives. So hang in there, hunker down, and do what needs to be done until we have sufficient vaccines and sufficient treatment to make it actually go away.
All right, then. I think I’ve made my point…
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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