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OSHA Virus Emergency Rule Looms as Potent Weapon for Litigation

Feb. 12, 2021, 10:31 AM

President Joe Biden’s directive that the federal Occupational Safety and Health Administration consider an Emergency Temporary Standard to combat the spread of Covid-19 in American workplaces has management-side attorneys and advocates bracing for that rule’s potential impact on litigation.

When citations are issued under that standard, they could be used as evidence of employer wrongdoing in personal injury and wrongful death lawsuits alleging gross negligence, attorneys say.

They could also bolster workers’ compensation claims of employees unable to meet the high bar required to sue their employers over on-the-job illnesses and injuries.

David Barron, an attorney with Cozen O’Connor’s Labor & Employment unit, said while he doesn’t expect an influx of virus litigation brought by workers due to a possible standard, he does think courts’ admissibility standards towards Covid-19 OSHA citations may be affected.

“When those cases come, and I think they will come, courts will have a hard time figuring out what evidence to let in and what not to let in,” he said.

“An ETS will be used as a measuring stick,” Barron said, offering bright line rules supplanting the only general guidance offered by OSHA during the Trump administration.

“My guess is whatever we get from OSHA will be similar to what we’ve seen come out of states. Keeping in mind that employees can’t sue their employers for violation of an OSHA standard, this issue is really going to come into play when it’s a lawsuit brought for personal injury,” the attorney said.

Workers’ Compensation Bar

John Ho, who chairs Cozen’s OSHA practice in New York, says he believes workers will still have a very high bar to meet when using OSHA citations to prove their negligence and wrongful death cases, despite a new rule.

He said where the ETS will be most helpful is in workers’ compensation hearings.

Workers’ compensation is a state-mandated insurance program that provides pay to workers who are injured or die on the job. Typically, laborers covered by workers’ compensation are precluded from suing their employer, but where there is potential evidence of gross negligence, or wanton and willful misconduct on the part of the employer, a worker or their family could take an employer to court.

Like unemployment insurance, workers’ compensation rules vary by state. It’s also what makes gross negligence and wrongful death cases so hard to win, both management and plaintiff’s attorneys say.

“Workers’ comp is supposed to be the exclusive remedy and the bar is pretty high,” Ho said, adding that he believes evidence of a Covid-19 citation under a new ETS may help workers that bring a compensation claim.

There is no private right of action under the OSH Act of 1970. In other words, a worker can’t sue their employer for violating or being cited under a safety statute. The OSHA citation can, however, be used as evidence of injury in a workers compensation proceeding.

“Is that citation also going to be used as evidence in a wrongful death lawsuit as well? Definitely,” Ho said. But, he also said,"if history is any indication, it’s still really difficult to get around the workers comp system through lawsuits. I don’t see that as resulting more successful wrongful death lawsuits just because of a new emergency standard.”

Nicholas Howell, an attorney at King & Spalding LLP, told Bloomberg Law that after an ETS is announced, he expects to see “an even broader proliferation of litigation based on worker safety concerns.”

Citing worker cases thrown out by federal judges based on primary OSHA jurisdiction, Howell said “this time we expect to see that the administration and its new rules might be a tailwind rather than a headwind for workers.”

State Liability Shields Add Complications

More than a dozen states have set up new legal hurdles for anyone filing a lawsuit over exposure to the virus, broadly protecting businesses, health-care providers, nonprofits, and others including schools and churches. Montana’s legislature passed such a measure on Feb. 4. It’s now headed to Gov. Greg Gianforte for his expected signature.

Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming have all passed some form of Covid-19 liability protection for nearly all businesses.

A federal proposal ushered by Senate Republicans failed to win approval, though more than a dozen states, including Alabama, Alaska, Indiana, Missouri, and North Dakota, have renewed their push to shield businesses from these suits at the start of the 2021 legislative season.

An emergency standard will likely add another layer of complication in states that have passed their own Covid-19 liability protections, said Josh Henderson, a partner at Norton Rose Fulbright US LLP.

“I don’t know how a federal OSHA standard would interact with these state Covid shields. I would imagine state law would still apply and there wouldn’t be any preemptive force to a new federal standard,” he said in a phone interview. “I think an ETS through OSHA will create for some litigants —what they will argue—a duty of care in a negligence case against a business, but the same defenses will apply.”

Paul Matiasic, a partner in the San Francisco-based Matiasic Firm, represents the family of grocery distribution center employee who allegedly died after contracting Covid-19 at work. The family has filed a negligence and wrongful death case against Albertsons’ Cos.-owned Safeway Inc. in California state court.

Matiasic said he isn’t sure how an emergency standard and the resultant citations issued against companies will affect plaintiffs’ litigation in the future.

“I don’t think the sky is falling type of scenario being advanced by management side attorneys will come to fruition at all,” he said. “From the macro perspective, we should be concerned about the health and safety of our workforce, which has seen the brunt of this pandemic.”

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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