Mitigating Liability Risk from Workplace Re-Openings

In an effort to combat the COVID-19 pandemic — and to comply with state and local governmental stay-at-home orders — virtually all offices at nonprofits across the country were closed in March and employees were required to work remotely. Now, as states, cities and counties start to reopen their economies, nonprofits are now or soon will be contemplating the reopening of their physical offices. But as they do so, nonprofit managers are very concerned about the health and safety of their employees as they return to the workplace.

In addition, managers are considering the potential liability risks the organization might face from employees in the face of a dangerous virus for which a vaccine or cure has yet to be found and might not exist or be widely available anytime soon.

From the liability perspective, nonprofit employers face the possibility that their employees will contract the novel coronavirus and hold them accountable for not putting proper protections in place in the workplace.

There are legal standards and constructs in place to protect employees and hold employers accountable. Likewise, there are steps that nonprofit employers can take to help guard the health and safety of their workforce as it returns to the office and mitigate their organizational liability risk in connection with this return.

 OSHA Standards

According to the federal Occupational Safety and Health Act (the Act), employers are required to “furnish to each of [their] employees 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 to [their] employees.”

While the federal Occupational Safety and Health Administration (OSHA) has not released specific standards covering COVID-19, employers could face risks under the Act if they do not take steps to protect their workplace and ensure it is not exposed to individuals who may have contracted the virus.

Based on the established legal precedent in this area, employees who believe they contracted the novel coronavirus on the job will likely face an uphill battle in proving that they became infected with COVID-19 because of their employer’s negligence or recklessness.

To prove a negligence claim, employees must prove that they got sick because the employer failed to keep them safe from harm. Traditionally, an illness you can catch anywhere is not something for which you can hold your employer liable under a general negligence theory.

Given that COVID-19 can be contracted from numerous places and can be passed from individuals who show no symptoms, this makes the element of causation very difficult. In other words, whether a nonprofit can be held liable if one of the employees infects another employee might depend on whether that employee can prove that the virus was contracted at work. Because COVID-19 is a pandemic, it would be difficult to be certain where the virus was contracted. Absent a large outbreak in the workplace, that will generally be difficult to prove.

An even steeper challenge for employees will be bringing a recklessness claim against an employer — a higher legal standard than negligence — which requires proof that an employer knew or should have known of conditions that would expose employees to the virus and failed to take appropriate corrective action.

Most employers will comply with and justly rely on federal health privacy laws to avoid such disclosures. This will likely run headstrong into the fear of employees being around their co-workers and not knowing whether or not they have been exposed.

 State Workers’ Compensation Laws

This is all presuming that those claims are not blocked by state workers’ compensation laws that generally prevent employees from filing private lawsuits for workplace injuries. Many employees might not be allowed to bring negligence or other “tort” lawsuits against their employers because of state laws that mandate workers’ compensation as the “exclusive remedy” for workplace injuries. These laws cover many, but not all, workplaces.

Each state offers its own standards for getting around workers’ compensation claims. Employees covered by workers’ compensation laws can bring separate personal-injury lawsuits in limited circumstances, such as where an employee is harmed by an employer’s willful misconduct or “gross” negligence — both of which are even harder for employees to prove because they must show intentional harm or conscious disregard by employers.

As has been widely reported, the business community has been raising the red flag about a rash of potential personal injury and wrong death lawsuits filed by employees or their families and has been lobbying Congress and the Trump administration to protect employers from such claims. The Trump administration and the Republican leadership in the U.S. Senate have generally sided with such concerns, while the Democratic leadership in the U.S. House of Representatives has generally stated its opposition to such employer protections due to the adverse effect on employee rights.

Even if no new COVID-related federal protections for employers from employee claims are enacted by Congress this year, for all of the reasons described above, it will remain difficult for employees to win these cases. That being said, nonprofit leaders have every legal, moral and other incentive to do everything possible to protect their employees as offices start to reopen.

 Steps to Minimize Nonprofits’ Liability Risk as Employers

Compliance with standards established by OSHA and the federal Centers for Disease Control and Prevention (CDC) can help protect employers from a liability perspective. It is critical to follow the advice that has been issued to date from and the CDC, as well as guidance on workplace safety protocols from the states, cities and counties in which the nonprofit’s offices are located.

Beyond that, many nonprofit managers are already exploring other steps they can and should take in their offices to help minimize the potential spread of the virus, such as by frequent deep cleaning of the office, installing high dividers between cubicles, providing adequately spaced working conditions, limiting insufficiently spaced or any gatherings in common areas, offering ready access to hand sanitizer, and requiring the wearing of masks in certain areas of the office (and perhaps providing them to employees).

The key for employers from a liability perspective is to avoid any working conditions that pose an imminent risk to employees, and to be sure to always adhere to — at a minimum — whatever is deemed to be the “standard of care” in the United States and in that particular state, city and/or county. Some of that will come from government edict, but some will come from recommendations promulgated by workplace safety organizations and from common and best practices more generally.

Of course, regular, clear communication and enforcement of workplace health and safety rules to all employees is critical. In addition, a slow and gradual return to the workplace that does not force employees to put themselves in risky situations may be the safest approach for nonprofits and their workforces. Allowing employees to return voluntarily will most definitely help to mitigate employers’ risk of legal claims, and employees at higher risk for COVID-related adverse effects and complications should be given the most leeway.

Beyond the physical office space is the question of employee travel, both locally in the city or town in which the employee works and out of the region, state or country. Here, for the short term at least, it is generally advisable to restrict or ban any work-related travel that is not absolutely essential. And when travel is deemed essential, great care should be taken to follow every best practice known, available and practicable.

Finally, if a nonprofit’s employee becomes sick and is or may be infected with COVID-19, the employee should be required to self-quarantine at home (with appropriate medical care and treatment), and the nonprofit should consider relaxing its leave policies if needed to encourage and facilitate the employee’s ability to remain at home.

 Employee Liability Waivers

Nonprofit employers may wonder whether, to limit their potential liability, they can ask employees to sign advance waivers of liability before bringing them back to work. Prospective waivers of claims by employees in favor of their employers are generally considered void as against public policy because of the unequal bargaining power of the parties, and as such, are typically unenforceable. Moreover, employees cannot lawfully be asked to waive their access to their workers’ compensation benefits. In short, advance waivers of liability are not a realistic option to minimize possible employer liability in this environment.

As the nation’s economy slowly reopens and as nonprofits contemplate the reopening of their own workplaces, there are incredibly difficult choices, decisions and risks to take into account. These considerations are driven as much by a compassionate desire by nonprofits to protect the health and safety of their employees as they are by the understandable need to mitigate their liability risks as an employer. Unfortunately, there are no clear-cut, silver-bullet solutions. The only thing that is certain is that governmental orders and best practices in this area will continue to evolve rapidly, and that nonprofits will need to pay close attention and adapt in order to best protect their workforces and themselves in this scary, brave new world.


Jeffrey S. Tenenbaum, Esq., is managing partner of the Tenenbaum Law Group PLLC in Washington, D.C. His email is jtenenbaum@tenenbaumlegal.com