In the process of recovering economically from a pandemic, employers will be looked upon for guidance and protection by their employees as they return to work. Factories have different conditions than retail stores, which in turn contrast to office settings. Regardless of the type of business, an employer who fails to take reasonable steps to protect its employees may be liable under principles of negligence and specific statutory regulations.
At a foundational level, negligence can be defined as the failure to use ordinary care that proximately results in injury or damage to another’s person or property. Ordinary care means the care a reasonably careful person would use. For liability to arise from a negligent act, the actor must owe a duty to the person injured. The determination of whether a person owes a duty to another depends on the relationship between them and the circumstances surrounding the situation in question.
In the employer-employee context, Michigan courts have recognized the existence of a special relationship that imposes a unique duty to provide protections from harm. As a result, passive inaction or a failure to actively protect, in addition to affirmative misconduct, can give rise to negligence liability for an employer. The basis behind imposing this duty to protect in the employer-employee relationship is the employer’s control over providing a safe place to work.
A central tenet of negligence law is the principle of causation. In Michigan, negligence claims require proof that a defendant was both the cause in fact and the proximate cause of the resultant injury. To establish a cause in fact there must be a showing that but for the person’s conduct, the injury would not have occurred. To show a proximate cause it is necessary to establish, as a matter of law, that the negligent actor should be held responsible.
In establishing a proximate cause, one question that may arise is whether the harm was foreseeable. For the present situation this translates to a question of whether infection of COVID-19 is a foreseeable risk when returning to the workplace. This in turn plays into the determination of reasonableness and ordinary care required by the circumstances. In normal times, the matter can be resolved by looking to industry standards and historical patterns of behavior in a given sector of the industry. However, in the unprecedented circumstances of a pandemic such as this, there is not going to be a gold industry standard by which to measure an employer’s actions.
Instead, an employer facing potential liability will need to take concerted steps to follow the guidelines of government executives and agencies. In other words, the easiest way for an employee to prove an employer’s negligence is with evidence that the employer chose to disregard the safety recommendations and mandates of federal and state authorities.
Similarly, an employer will need to ensure that its employees are following safety protocols so as to avoid potential liability under a theory of respondeat superior (vicarious liability), pursuant to which an employer may be liable to third persons injured as a result of the negligent actions of employees that occur during the course and scope of the employees’ employment. This type of liability could arise in a situation where an employee transmits the virus to a member of the public (or another employee) as a result of, say, refusing to wear a mask at the workplace.
Today, employer liability is largely predicated on statutory law. Of particular note for Michigan employers is the Americans with Disabilities Act of 1990 (ADA), 42 USC 12101 et seq., as amended by the ADA Amendments Act of 2008, a federal law that, among other things, makes it unlawful for a covered entity to fail or refuse to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 42 USC 12112(b)(5)(A).
The Persons with Disabilities Civil Rights Act (PDCRA), MCL 37.1101 et seq., is Michigan’s counterpart to the ADA. With a few exceptions, the PDCRA applies to employers with less than 15 employees who are not covered by the ADA; however, employers subject to both statutes must comply with whichever is the most restrictive. 42 USC 12201(b).
As mentioned above, the ADA requires an employer to make reasonable accommodations to the known physical or mental limitations of an individual with a disability. The ADA defines reasonable accommodation through examples, such as “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations.” 42 USC 12111(9)(B).
With hypertension, diabetes, heart disease, and other common conditions posing an increased risk of severe disease from COVID-19, the question becomes whether an employer must provide reasonable accommodations to employees suffering from these conditions in order to protect them from the virus.
Remarkably, the ADA, through the EEOC, sets forth certain guidelines to apply in times of a pandemic. Originally issued during the H1N1 outbreak in 2009, the EEOC’s guidance (title Pandemic Preparedness in the Workplace and the Americans with Disabilities Act) outlines the actions an employer may take to protect its employers. Of particular note, the guide states the following: “The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19). Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public. The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace. This update retains the principles from the 2009 document but incorporates new information to respond to current employer questions.”
However, there is one important exception to the ADA’s reasonable accommodations requirement; the “direct threat” theory. Under this exception, a “direct threat” is a significant risk of substantial harm to the health or safety of an individual that cannot be eliminated or reduced through reasonable accommodations. Most significantly, the EEOC’s guide expressly provides that the COVID-19 pandemic meets the direct threat standard based on guidance from the CDC and public health authorities. In other words, an employer’s failure to provide reasonable accommodations to a person more susceptible to COVID-19 will likely not give rise to a violation of the ADA.
In addition to the ADA, employers in general are subject to the federal Occupational Safety and Health Act of 1970 (OSHA), 29 USC 651 et seq., which sets forth health and safety standards to protect workers from workplace hazards. Under 29 USC 667(b), each state may develop an occupational safety and health plan that is at least as effective as the federal plan. Michigan’s plan is the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq. Under MIOSHA, an employer has the general duty to provide employees a place of employment free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee. MCL 408.1011. This provision mirrors the federal general duty clause, which requires an employer to correct a recognized hazard once the hazard is discovered, even where no standard exists.
In determining whether a hazard exists, courts will look to the regularity and frequency of the physical condition (hazard) in the workplace and the severity of injury it may cause. Recently, the OSHA administration has provided guidance to employers reopening during the coronavirus pandemic, lending credence to the view that an employer may be liable for violations resulting in infections of the virus. Where OSHA requirements apply to preventing occupational exposure to COVID-19, the most relevant provisions for employers to consider include: OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection when job hazards warrant it; and the General Duty Clause, Section 5(a)(1), which, as previously discussed, requires employers to furnish to each worker “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.” In addition to the foregoing, OSHA has published Guidance on Preparing Workplaces for COVID-19, which is available through the following link:
https://www.osha.gov/Publications/OSHA3990.pdf.
The business attorneys at Dalton & Tomich are monitoring the changes in the law and executive orders so as best to provide our clients with the counsel they need to avoid potential liability associated with reopening. Whether its preparing internal policies, conducting compliance review, or providing representation in liability disputes, our attorneys are equipped with the expertise to help protect your business.
