I’ve Read About Businesses Being Indemnified Against COVID-19 Lawsuits. What Does That Mean?
First of all, just to be clear, as of now there has not been ANY BLANKET INDEMNIFICATION that has been passed to protect businesses from employee or customer lawsuits related to COVID-19. Indemnification would act as security for the indemnified party by requiring another party to compensate the losses or harm incurred by a lawsuit from a third party. Several politicians have discussed providing businesses with some sort of legal indemnification for lawsuits related to COVID-19, but as of now it is only hypothetical. If something like this were to pass, either the government would compensate employers for losses or harm incurred by COVID-19 lawsuits brought by employees or other parties, or they would outright prohibit them from even being able to be brought in the first place. However, as of right now, businesses CAN BE HELD LIABLE and this is true even if the business is using the best possible currently recommended practices to prevent the spread of the virus.
We Are Getting Ready to Re-Open. What About COVID-19 Liability?
Any business that is planning to re-open in the current environment should be continuously following and staying up to date with the evolving guidance from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), as well as state/local public health authorities on how to best protect employees, patrons, and the general public. This is in addition to ensuring that the business is even eligible to re-open as set forth by your County and Gov. Gavin Newsom. Consulting with competent legal counsel prior to a re-opening is highly recommended at an uncertain time such as this. This goes for any business that is looking to re-open right now as well as any workers that are being asked to return to work in this current environment.
Can an Employer Take an Employee’s Temperature at Work? What About the ADA?
While taking the temperature of an employee does constitute a medical examination under the ADA, the CDC and state/local health authorities currently allow for employers to measure an employees’ body temperature during this pandemic. So while the answer is yes that an employer can take an employee’s temperature, it is still considered medical information and is subject to ADA confidentiality requirements.
Can an Employer Require Employees to Wear Personal Protective Equipment (PPE)?
Yes, during the COVID-19 pandemic an employer may require an employee to wear Personal Protective Equipment (PPE) such as a face mask and if the employee does not have one of their own, then the employer would have to provide one. Further, an employer may be required to provide additional reasonable accommodations to an employee with a disability under the ADA.
Can an Employer Require That an Employee Be Tested for COVID-19?
During the current pandemic, yes, both the ADA and the EEOC have expressly stated that employers may require their employees to be tested for COVID-19 before returning to the workplace, even if they do not have any symptoms. Further, an employer can require the employee to share whether they have been confirmed positive for COVID-19 or if they have been in close contact with someone that has tested positive.
An Employee Tested Positive. Should the Other Employees Be Notified?
YES! But the identity of the employee who tested positive SHOULD NOT BE DISCLOSED. Instead, it is recommended that all of the employees should simply be notified that a co-worker or patron has tested positive for COVID-19. Additionally, it is recommended that the employee who tested positive provide a list of employees and/or patrons with whom the employee has had recent contact. Then, those individuals can be reached out to and informed that they may have been exposed, but without revealing the identity of the employee that tested positive.
Can an Employer Be Held Liable for an Employee Contracting COVID-19?
The short answer is YES. Cal/OSHA requires employers to provide their employees with working conditions that are free of known dangers. Employers are required to take steps to protect their workers from being exposed to infectious diseases such as the novel Coronavirus, COVID-19. It is essential that all employers take the utmost precaution to ensure workplace safety for both patrons and employees. Unless the Government decides to pass legislation ensuring blanket indemnification to all places of business, they CAN AND WILL BE HELD LIABLE for any customer or employee that contracts the virus, regardless of whether or not they utilize the best possible preventive measures.
Additional Information for Business Owners
As businesses begin to reopen, there are many things that need to be considered: