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Former WA Attorney General: Businesses ‘should be protecting their employees’ returning to work

Wendell Ryan wipes down the front door at Sparky's Jerk BBQ Cuisine restaurant in Wynwood on July 09, 2020 in Miami, Florida. (Photo by Joe Raedle/Getty Images)

As COVID-19 cases are rising again and more businesses are reopening, some employers are worried. You can reopen, sure, but if the result is a flurry of lawsuits, will the business survive?

“The Senate Republicans are pushing hard for sort of narrowly crafted liability protection for employers centered around COVID-19,” said Rob McKenna, former state attorney general. “They actually want to include liability protection for employers in the next COVID-19 stimulus package.”

For now, these are aimed at protecting companies from liability to their employees, but might also extend to protections against claims from customers.

Could businesses require customers to sign a waiver?

“There are six states where the Legislature has passed a law allowing businesses to require customers to sign a waiver to come into the restaurant, or come into the store, or what have you,” McKenna said. “But there’s a question in other states of whether or not businesses can require that. That’s why you’re seeing legislative action at the state level.”

If a business owner were to follow all the recommendations of the local health authority, however, there would be limited protections if an employee or customer were to test positive.

“That means that you were exercising a reasonable standard of care,” McKenna said. “At the same time, if there’s evidence that you didn’t follow all the guidelines that might open you up to liability you wouldn’t otherwise have. But in either case, there’s still the problem of causation.”

An employee or customer who gets ill would have to prove they contracted COVID-19 as a direct result of working at or visiting that business or store.

“That’s not easy because, of course, we’re potentially exposed to COVID all over the place — whenever we’re away from our homes, riding public transportation, shopping at the grocery store and so forth,” McKenna explained. “I think that’s why we haven’t seen a real flood of these workplace lawsuits so far. I think causation is difficult. And as long as employers are following the guidelines, they’re probably going to be protected from claims that they weren’t doing enough.”

That said, if a customer had evidence that a business or restaurant was not taking proper precautions, there would be a combination of causation and evidence, which could make a difference.

“The guidelines are a form of protection, but they also raised the bar in terms of what your obligations are if you’re reopening to public and if you bring your employees back,” McKenna said.

What’s allowed as counties reopen under Gov. Inslee’s ‘Safe Start’ phases

From an employee’s point of view, do you have any rights to refuse to return to work if you deem it’s unsafe?

“I think in many cases they do not. That is to say that they … don’t have a legal right to keep their job if they refuse to show up. I think that’s a sort of a general rule, but you are seeing states in some cases move to protect employees so that they have the right to not show up for work,” McKenna said.

The protections don’t necessarily protect an employee’s payment, but they could have their job protected if there’s a reasonable fear of COVID as a basis for not returning to work.

“For example, if you’re a restaurant server, but you have asthma and you’re more susceptible to COVID, or it’s more dangerous for you, you’re probably going to have a stronger claim there that you should be able to keep your job, at least be on leave from it, without getting fired.”

“I think if the employee can show that the business isn’t complying with guidelines, then they would have a much stronger argument for keeping their job but not showing up for work,” McKenna added. “And I think that this is where, again, where the guidelines also become requirements on the employer that they really need to follow.”

Employment lawyers are advising business clients to make sure they’re following the guidelines, and even to set up a coronavirus prevention team.

“There are a lot of things that a business can do to protect itself from those kinds of claims,” McKenna said. “But the most important reason for doing these things is the business should be protecting their employees. It’s important in and of itself, not just to avoid legal liability.”

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