Covid-19 tasks employers with continuous awareness of new laws at the federal, state and local levels. Existing law antecedent to the pandemic must also be considered. Employers should expect repurposing of OSHA-inspired claims during the COVID-19 era and be prepared to mitigate liability.
California Labor Code section 6400 requires all employers to furnish employment at a place that is “safe and healthful.” Federal OSHA contains similar requirements. Title 29 USC section 654 requires an employer to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
California Labor Code section 6402 states: “No employer shall require or permit any employee to go or be in any employment or place of employment which is not safe and healthful.” Employers have an affirmative duty to take action on workplace safety under Labor Code section 6406: “No person shall do any of the following: … fail or neglect to do every other thing reasonably necessary to protect the life, safety, and health of employees.”
The California Department of Industrial Relations provides industry-specific guidance on COVID-19 safety covering 37 industries. There are Cal/OSHA COVID-19 General Checklists with industry related guidelines on training and safety such as face covering, distancing and disinfection requirements. See https://www.dir.ca.gov/dosh/coronavirus/.
Neither the Department of Cal-OSHA nor fed-OSHA are the sole enforcers of workplace safety laws. Employees or plaintiff-attorneys may assert derivative claims from violation of OSHA laws to include the following theories:
- Representative claims under the California Private Attorneys General Act to recover civil penalties on behalf of employees and the State of California for Labor Code violations.
- Claims under the California’s Unfair Competition Law, which broadly provides a private right of action against businesses that engage in any “unlawful” act and is often a tool in employment lawsuits due to its four-year statute of limitations.
- Personal injury and wrongful death lawsuits by non-employees who became infected because a household member was working in an unsafe workplace.
- For occupational injuries arising from COVID-19, there may be penalties for the employer’s serious and willful misconduct in deliberately failing to provide a safe workplace.
- Public nuisance claims against an essential business for alleged failure to comply with basic health and safety standards.
Employers should think beyond California workers’ compensation statutes as there can be direct liability to employees and third parties for monetary damages from an unsafe workplace. Employers should take affirmative steps to protect their employees and minimize exposure by implementing procedures to address the risk of COVID-19 in the workplace, placing particular attention to the guidelines from OSHA and the CDC. This guidance can be a shield or a sword in an OSHA-derived lawsuit, depending on the employer’s diligence implementing and enforcing safety standards.