About this time last year, I wrote about effective COVID-19 safety policies and how contractors can ensure job site safety to comply with the developing Occupational Safety and Health Administration (OSHA) and Centers for Disease Control and Prevention (CDC) COVID-19 safety standards and guidelines. Since that time, much has changed in OSHA and CDC guidance and how businesses operate during a pandemic. But some things remain the same, including the need for contractors to ensure job site safety and prevent their employees and clients from contracting COVID-19 on the job site or at the office. Because safety remains paramount during this ongoing pandemic, contractors should be thinking about what they are liable for at the job site or office, especially the potential exposure as they consider vaccine policies, on-site operations, and more end-of-pandemic logistics.

The question of liability will largely depend on the state where a contractor operates its business. For example, Kentucky is the most recent state that has enacted a law that shields certain businesses from COVID-19 injury and death lawsuits. This new Kentucky law states that certain businesses cannot be held liable for COVID-19-related injuries during the state health emergency sparked by the coronavirus pandemic so long as they adhere to public health and safety guidelines. West Virginia, Florida, Indiana and Alabama are other states that have passed similar coronavirus legislation in recent months.

With more states adopting liability laws to shield businesses from potential lawsuits related to COVID-19 injuries or death, contractors will need to make sure that they understand their potential liability under the law and how to avoid that liability. It is especially important to ensure that evolving safety and health standard guidelines, such as those issued by the CDC and OSHA, are well-considered and appropriately practiced at every job site and office.

With the recent change in leadership at OSHA, this is a crucial point for every contractor to consider. Many workplace safety experts have predicted that workplace safety enforcement will become more aggressive and robust under an OSHA governed by the Biden administration. In line with that prediction, OSHA recently stated that it plans to double the number of inspectors in the field. These changes at OSHA mean that every contractor needs to:

  • track (and document) evolving OSHA/CDC safety guidelines,
  • consistently enforce the OSHA/CDC safety guidelines,
  • confirm that its own COVID-19 safety policies and rules comply with the recommended safety guidelines, and
  • adjust (and document) business plans and safety policies when official guidelines or recommendations change.

Keeping track of health and safety guidelines and then complying is paramount to a contractor protecting itself and its workers, especially in light of the changes at OSHA and the development of new liability laws. Although such laws may vary by state and provide a certain level of protection for a business operating during the COVID-19 pandemic, none of the currently enacted laws shield businesses that are reckless, wanton, or in willful disregard of public safety guidelines and standards.

Antonija Krizanac is an associate and member of the construction and design group in the Portland, Oregon, office of Stoel Rives LLP. Contact her at 503-294-9459 or antonija.krizanac@stoel.com.