Stephen Scott

Death, taxes, and getting hit with a blue shell in Mario Kart when you’re comfortably in the lead: What can we learn from those three absolutes in the COVID-19 sphere? Simply, just because you’re out front, you should not take your foot off the gas because you never know when an external force can wreak havoc.

Specifically, the recent stages of the coronavirus pandemic have been a roller coaster, with many twists and turns along the way. One week brings promising news of decreased community spread, and the next week concerns of new variants and local “surges” dominate the headlines. With the number of vaccinations trending up and positivity rates trending down in some states, there is reason for optimism. Even so, however, employers can ill afford to coast through the rest of the pandemic when it comes to workplace safety measures – removing one’s foot from the gas could lead to dangerous working conditions and unwanted litigation (aka the dreaded blue shell in Mario Kart).

As discussed last month, relaxing workplace safety measures too early could invite a knock on the door from the Occupational Safety and Health Administration (OSHA). This month, it is time to remind you that relaxing workplace safety measures could also invite litigation from employees in a stressed economy, because – let’s be honest – it seems like the smallest of disagreements can now result in huge blowups. Those blowups maybe would not have occurred in 2019, when people remembered how to interact with one another in a cordial manner. As described below, the data supports the conclusion that people remain on edge, and as litigious as ever.

In fact, Fisher Phillips’ COVID-19 Employment Litigation Tracker highlights the risks that still loom with COVID-19 litigation. The past four months alone have ushered in 875 COVID-19-related lawsuits across the country addressing a variety of claims, from an employer’s failure to provide required leave to complaints about unsafe working conditions.

Now you might blow off my advice and say, “Stephen, we’re doing everything possible to ensure compliance in our offices.” However, as employers continue to monitor their workplaces for compliance with federal and state COVID-19 safety measures, you should not lose sight of external risks that might be present for employees working in the field or whose job responsibilities require frequent travel to customer facilities. For example, in a lawsuit filed in Pennsylvania recently, an employee of a carpet cleaning service claimed that he was wrongfully terminated for objecting to working at a customer’s facility where social distancing and the wearing of protective personal equipment was not being practiced.

According to the complaint in Holtzman v. Cleaning Services Corporation, the employee was sent in late June 2020 to a customer’s place of business. There, he observed other individuals in close proximity to one another and not wearing face coverings. He alleged that upon making this observation, he notified his boss that he was unable to work where COVID-19 precautions were not being followed because he cared for his elderly, at-risk grandfather. The employee alleges his employment was terminated after he raised these concerns.

While this lawsuit is still in its infancy and the outcome not yet determined, it should serve as a helpful reminder that an employer’s obligations to provide a safe work environment extends to all employees, and not just those working on the company’s premises. For example, OSHA’s General Duty Clause provides that every employer has a general duty to “… furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” That duty applies regardless of the location where your employees are working. This could, conceivably, also include work being performed at a customer’s facility, if the unsafe conditions are made known to the employer.

This lawsuit is a good reminder for employers in Oregon that state and federal law protect individuals from retaliation for complaining about unsafe working conditions, including conditions stemming from COVID-19. The Biden administration is particularly keen on enhancing protections for COVID-19 whistleblowers. On March 12, OSHA adopted a COVID-19 National Emphasis Program, which, among other things, devotes more resources to the agency’s Whistleblower Protection Program.

Based on these initiatives, you would be well served to not quickly dismiss COVID-19 safety-related complaints made by employees. In certain situations, it might be necessary to modify an employee’s work assignment, or make arrangements with a customer for an employee to visit the facility during a time when there is less foot traffic. Thus, if you receive a complaint, review it and document your efforts to mitigate the employee’s concerns. This type of additional investigation is helpful in two ways. First, the documentation and interactive process will be helpful in defending any lawsuit. Second, the employee’s morale will likely improve, based on the fact that you are taking his or her concerns seriously; he or she should feel heard and possibly appreciated for diligently assuring all employees’ safety.

Ultimately, there are positive signs that the worst of the pandemic is behind us. However, litigation trends and OSHA’s push to strengthen COVID-19 safety protections for employees are a clear indication that the pandemic isn’t over yet. This is not the time to let off the gas and become complacent because the risk of the blue shell (litigation) is too great. Remain steadfast and diligent in enforcing, maintaining and maximizing workplace safety.

Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.