Despite new legal protections extended for employers soldiering on with business during the COVID-19 pandemic, some 3,400 pandemic-related lawsuits have been filed across the country.
An Oklahoma City attorney who specializes in labor and employment law and the vice chair of the legal reform team at the State Chamber of Oklahoma spoke about legal responsibilities of business owners and offered observations about the pandemic and the current business and legal climate recently as guests at a virtual forum sponsored by The Journal Record. Melissa McDuffey, an attorney at the firm of Crowe & Dunlevy, and Amy Anderson, an active member of the chamber as managing owner of Kipling Strategies, were joined by State Chamber Vice President of Government Affairs Kinsey Westwood in the JR Now forum held online.
The Oklahoma Legislature earlier this year passed Senate Bill 1946 to provide a level of protection against liability lawsuits for Oklahoma employers who put good-faith efforts into following Centers for Disease Control and Prevention or other relevant guidelines to best protect people against the spread of COVID-19. The goal was to give business owners confidence that if they reopened and started serving communities despite the continuing pandemic they would not be held liable for any spread of the sickness so long as they took appropriate precautions.
Westwood said the chamber heard lots of concerns expressed and received many questions during the early days of the pandemic about business liability. Leaders in Oklahoma got feedback from colleagues in other states, as well, and that collaboration played into the crafting of SB 1946 and other measures meant to keep the economy moving forward despite harsh realities of the pandemic.
Earlier in the year, McDuffey said her firm, too, received many inquiries from Oklahoma businesses concerned about matters including whether they should require employees and/or customers to wear masks. Others asked about how to handle issues of employees too afraid to return to work or hampered in their ability to work because of closures of schools or day care centers.
As the pandemic has progressed, and as laws like SB 1946 have been passed, many questions have been answered. McDuffey pointed out that language in the state law doesn’t make it mandatory for employers to keep up with every line of pandemic guidance issued by the CDC, the Occupational Safety and Health Administration, and by state, county and local governments. It does require, however, businesses to make “good faith” efforts and also to “stay on top of things” even as guidance may shift.
“What we are really helping employers with at this point is making sure that they’re following the guidelines for their businesses if there are specific guidelines, or just generally if there are not specific guidelines,” the attorney said. “That is harder to do than what you might initially think, because the CDC in particular and OSHA and all of the various government bodies are changing their guidelines frequently.”
As an example, she said that several months ago if an employee of a business came down with COVID-19 the guidance was that he or she would not be allowed to return to work until having a negative test result. Now, because there have been so many false positive tests, the guidance has changed. McDuffey said employees can return to work, except in a few limited circumstances, after they’ve completed a period of quarantine and had no symptoms or fever without fever-reducing medications for 24 hours.
Federal lawmakers have proposed a Safe to Work Act to additionally extend protections. Under the proposal, all coronavirus-related personal injury and medical malpractice lawsuits would fall under the jurisdiction of federal courts. The bill also would require plaintiffs to establish not only that a business was grossly negligent or engaged in willful misconduct, but also that it failed to make “reasonable efforts” to comply with applicable public health guidelines. In addition, all such cases would be subject to limitations on non-economic damages such as pain and suffering.
Another piece of federal legislation, the Families First Coronavirus Response Act, or FFCRA, addresses some other obligations of employers related to the pandemic. It requires certain employers, for example, to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
Generally, if an employee simply expresses fear about COVID-19, that would not justify a flat refusal on the part of that person to return to work. There may be factors that come into play, however, that could potentially lead to justification under guidance of the Americans with Disabilities Act. McDuffey advised business managers to conduct “fact-specific” inquiries into each such individual case and to seek out legal guidance from a professional if necessary. When it comes to employees who have been exposed to COVID-19 or who are in quarantine awaiting test results, the FFCRA provides for specific relief. Employees can receive up to two weeks or 80 hours of paid leave at full pay. An additional 10 weeks paid at two-thirds of regular pay would be available in cases related to interrupted child care, with exceptions made for small employers.
“There are still obviously some gray areas, but we are a lot more informed today than we were back (when the pandemic first set in),” McDuffey said.
The forum panelists predicted that, despite protections and attempts made at local, state and federal levels to address questions that might arise in regard to the pandemic and responsibilities of employers and employees, people will still file lawsuits seeking specific relief and further clarification of legal gray areas.
“I think at least in my practice area we’re going to see situations where employees will allege wrongful discharge or some retaliatory action for having COVID-19 or refusing to return to work after contracting, and even though SB 1946 is in place I still anticipate people will challenge it or will say there’s some work-around to allow them to recover (judgments) based on exposure or contraction,” McDuffey said, “but I think they’re going to have a real hard time proving a very essential element – causation.”