Governors’ offices and state agencies are rolling out a patchwork of workplace-safety orders for employers as they reopen businesses amid the coronavirus pandemic—providing potentially helpful guidance but also another layer of uncertainty over liability risk.
In Texas, for example, restaurants, retailers, and movie theaters are allowed to reopen starting Friday but must restrict their capacity to 25% of their building occupancy limit. In Pennsylvania, where only “life sustaining businesses” are allowed to operate for now, a state health department order spells out safety protocols such as face coverings and temperature checks for employees. Orders and guidance have been issued for employers in Alabama, Colorado, Georgia, and Tennessee, to name a few.
Some state guidelines read like recommendations, to be implemented “where appropriate.” Others carry a threat of fines or legal enforcement by state health departments or other authorities.
State enforcement is a relatively minor concern, though, compared with the liability risk employers could face if employees get sick or allege unsafe working conditions, according to employment lawyers advising businesses on reopening efforts. The extent to which compliance with state orders might affect the outcome of lawsuits remains to be seen. Employers could point to compliance as evidence they’re providing a safe workplace, while employees could argue the opposite if their employers fail to follow state orders.
“It’s sort of unclear and will be fleshed out over the next couple of months as these kinds of claims are filed,” said
The liability question could vary somewhat from state to state. Some states have stricter workers’ compensation laws than others that might block employees from taking Covid-19-related injury claims against their employers to court, Betts said. Employment lawyers and professors also have noted workers would face high legal hurdles to prove employer liability for an unsafe workplace.
In Georgia, businesses could be protected from liability resulting from following the governor’s orders on business reopening and safety protocols, based on immunity language in the governor’s April 20 executive order.
“I don’t think that’s going to provide any immunity against certain federal laws,” but could prevent certain state-law claims against Georgia employers, said Christina Meddin, an employment lawyer with Seyfarth Shaw in Atlanta.
The state orders and guidance documents issued so far often include broad recommendations for all workplaces, alongside industry-specific guidelines for restaurants, retailers, movie theaters, and others.
In Georgia, the governor’s April 23 executive order lists 39 requirements for restaurants that include limiting customers to 10 people per 500 square feet of public space (not counting the kitchen), prohibiting self-service buffets, keeping dining-room playgrounds closed, and redesigning seating areas to provide at least six feet of separation.
Colorado’s state health department has issued guidance for grocers, funeral service providers, construction businesses, and various others. For child-care providers, the state is advising businesses to monitor children and staff for illness, avoid use of hard-to-clean surfaces such as soft fabric toys, and limit group sizes to 10 children.
The Tennessee governor’s office also issued a batch of guidelines—some for all businesses plus other industry-specific guidelines for restaurants, retail, and exercise facilities.
The guidance is helpful to a point, as businesses figure out how to operate safely while limiting the spread of Covid-19 among customers and employees, said Mary Leigh Pirtle, an employment lawyer with Bass, Berry & Sims PLC in Nashville, Tenn.
But there’s also an awful lot of it—state orders, guidance from the national Centers for Disease Control and Prevention and other federal agencies, and recommendations from industry groups such as the National Restaurant Association.
“It’s really up to the employers to figure out what’s appropriate for their companies,” Pirtle said. “It’s taking all of that, the totality of those guidelines, and figuring out what’s applicable to each company’s workplace and what they can reasonably do.”
Pirtle is advising her clients to proactively develop policies and educate their staff on those policies, rather than wait for employees to request safety protections, she said.
The logistics of complying aren’t necessarily easy, Betts said. When Pennsylvania first issued its workplace-safety order, businesses had only a few days to acquire the necessary face coverings and temperature-check devices, she said.
“That puts you in a really tricky compliance position,” Betts said.
Uncertainty about Liability, Safety
Complying with state workplace-safety orders is one small part of the larger puzzle for employers, Pirtle said. “The biggest issue is that it’s unclear at this point whether an employer can be held liable to employees who become sick,” she said.
Even strict compliance with state orders, CDC guidelines, and industry best practices doesn’t guarantee workers won’t get sick and employers won’t get sued.
“Obviously this is an evolving situation. We’re learning new aspects about the virus every day and its transmission,” Pirtle said, so the safety protocols considered best practices today might be outdated a few months from now.
Businesses are encouraged by talk from the White House and congressional Republicans of federal legislation to shield businesses from liability related to Covid-19. But for now it’s still just talk and is likely to face stiff opposition from Democratic lawmakers, labor unions, and plaintiffs’ attorneys.
“I’m hearing employers are hopeful that there will be some sort of push toward setting some limits on liability,” Pirtle said. “Everyone is on edge and unsure of how to appropriately react.”
For at least a few businesses, the uncertainty means they will opt to delay reopening even after state officials give them permission. Others will keep their employees working from home for the foreseeable future, Meddin said.
“In general, businesses certainly want to get back to their normal operations,” she said, “but I think there is still a great deal of hesitation in doing that.”