COVID-19, Workplace Safety, and Employer Liability Concerns

Can an employer be responsible if you are required to return to work and you contract COVID-19?

If you are forced to work from home during the COVID-19 pandemic, can your employer be responsible if you are hurt while “on the job”?

These are just two of many questions that Negretti & Associates principal Jonathan Negretti explored recently with employment law attorney Jessica Miller in his Legal Beagle Podcast.

A former law school classmate of Negretti’s, Ms. Miller is an attorney at Zoldan Law Group in Phoenix. She has developed an impressive CV that includes having filed appellate briefs and arguing in front of the Ninth Circuit Court of Appeals in San Francisco. Further, she has been recognized by Super Lawyers and was selected as a “Rising Star” based on peer recognition and professional achievement. Ms. Miller has served as lead counsel and assistant counsel in more than 100 lawsuits, representing both plaintiffs and defendants.

Jonathan Negretti: First question: If I’m forced to go back to back to work as an employee, and I get sick with coronavirus, can my employer be held responsible?

Jessica Miller: The short answer to that is maybe. It really depends. One thing that I’ll say about all of the law that’s governing this subject matter right now is that it’s really based on What would reasonable people do under the circumstances?

So, if you’re an R.N. and you go to work and you contract COVID-19, it’s pretty certain that you contracted COVID-19 in the workplace. Then you file for workers’ comp. That’s something that I think that the Department of Economic Security or the Industrial Commission has encouraged insurers to not categorically deny all of these claims, because it’s a workplace hazard.

If an R.N. didn’t have work-related exposure to COVID-19 patients, then she or he wouldn’t contract this illness. The fact that an R.N. is working benefits the employer. The employer, through its workers’ comp insurance carrier, ultimately can be responsible.

That becomes less evident in this situation: Say that I work in a call center. The weekend before, I went out to the beach or to a concert — one of those functions that the public is shunning, and I didn’t say that as a political statement. If I go somewhere where I could have been exposed to the virus, and then I come in on Monday and I’m exposed to some co workers, and then I get sick, the employer is allowed to ask, “Where do you think you were exposed?”

If COVID-19 wasn’t contracted in the workplace, the employer has a legitimate defense to not providing workers’ comp for that illness.

Remember, you also get benefits. The federal government rolled out the FFCRA (Families First Coronavirus Response Act). In which, if you have to stay home, I think you get two weeks of either full pay or partial pay. Beyond that, you can apply for a workers’ comp claim, or you can file a workers’ comp claim and see if the insurer will cover it. They’re just going to look to say, “How plausible is it that you caught this actually at work?”

Hopefully, any employer is imposing reasonable restrictions on employees returning to work. I think I would have a real problem with an employer that’s not requiring a mask to return to work, or an employer that’s not able to impose social distancing guidelines. They should be doing those things. It becomes less likely for employees to contract COVID-19 at work, and more likely that the employer will have healthy employees that are able to keep the business running.

Jonathan Negretti: How difficult do you think it is to prove that nexus between the virus and the positive test? There now have been lawsuits filed against Walmart. Let’s say you’re a Walmart employee and you’re not going out to a concert or out to eat or anything. You’re literally just going to work and you’re going home. How difficult is it to prove that relationship between those two things?

Jessica Miller: I can’t recall if people at Walmart and grocery stores are considered essential workers. For essential workers, the Industrial Commission has come out and said it will be really sensitive to these front-line workers, who are way more likely to contract COVID-19. It didn’t come out and say, “don’t deny these claims.”

For essential workers, you’re going to have a little bit of a relaxed analysis, because it is just that much more likely that they were exposed in their workplace. As far as Walmart opposing each and every workers’ comp claim that’s filed and actually forcing the injured worker to prove that nexus, it’s difficult.

I think that you’ll see different states develop different policies. It just hasn’t been long enough to really tell how all that’s going to roll out. If administrative law judges are routinely denying workers’ comp claims because of a claimant’s inability to prove precisely who the disease was contracted from, I think that that goes against every public policy principle that’s out there. That’s precisely the problem, right? That was one of the directives from the government: more testing and contact tracing.

I don’t think that every claimant is going to be held to that standard — except maybe in a really, really conservative state. I don’t think a claimant can be held to that standard to prove where they contracted it from. I definitely think it would be great ammunition to use against an employee, you know. Just pull up their Facebook. Were they in the pool with a bunch of people the weekend before? There’s just no proving it.

If we could prove where it all came from, then the country would be in a much better place, right? We’d be able to put a stop to it. But since that’s an issue that’s faced by everyone — employers, employees, citizens, non-citizens, residents, human beings, you know — everybody’s having a problem with this. I can’t imagine that it would be so strict that they would have to actually prove where they got it from, especially in the case of essential workers.

Jonathan Negretti: You bring up an interesting point. Sometimes plaintiffs have this very linear view of how things work: I got sick and therefore it must have occurred here. You highlight the fact that maybe it’s not as clear, or the line isn’t as bright as that. All of these other factors are at play. There’s still some balancing tests or maybe some reasonable tests that have to be done in order to truly identify whether there’s a viable claim.

But I think you and I skipped a step — only because we’re attorneys and we think a certain way. Can you explain quickly why you have to file a workers’ compensation claim?

Jessica Miller: You have to notify the employer first. Every employer in the state of Arizona has to carry either workers’ comp insurance or, if they’re self-insured, they have to have a certain amount of money saved up to be able to compensate employees who are injured on the job when they’re working for the benefit of the employer. Arizona has a no fault system, so it doesn’t matter whose fault it is. If you’re injured on the job, then your employer has to pay it.

I would go out on a limb and say most employers have workers’ comp insurance. The insurer has the ability to evaluate the claim and then approve it immediately, without the employee ever having to file or go to some type of hearing or sue. Insurers have the ability to grant the claim or the ability to settle the claim with you if, heaven forbid, it’s a permanent type of injury. You have this intermediate [arrangement] — I’ll say informal, even though it’s not formal, it’s governed by statute and regulation — where employees do not have to sue the employer, which is really good news. So, not everyone filing a workers’ comp claim is going to have to go sit in front of an administrative law judge and put on an entire case to prove where they got COVID-19 from.

I would imagine it varies from insurance company to insurance company, depending on who your employer’s carrier is. A workers’ comp is case is not something that you just go to the superior court and you file on. It’s housed by its own agency. If you want to get real boring, we can talk about Article 1 judges versus Article 3 judges, but I won’t.

Jonathan Negretti: I’m going take a nap and I’ll come back when you finish that explanation.

Jessica Miller: I love that stuff, nobody else likes all that stuff except for me! The good news is that you don’t have to haul off and sue your employer if you’re injured at work. Sometimes you can just notify the employer and the carrier will say, “OK, we’ll compensate this person because they were injured at work.”

Jonathan Negretti: This leads us to Question 2. “Injured at work” — those three words. This comes from conversations that I’m having. People are asking me these questions. Do you see a shift or a different level of responsibility for employers that are requiring their employees to work from home? Do you see a situation emerging from this where employer liability extends to the home, because the employee can’t come to the office?

Jessica Miller: Employer liability definitely extends to the home. But you have to use the same analysis that any workers’ compensation judge, attorney, or carrier would use.

One thing I think people need to remember when we’re thinking about industrial injuries at home, it’s not the type of industrial injury where you’re handling caustic materials and chemicals and it burns your eyeballs. You’re not dealing with heavy machinery, because all of those people have to attend work to actually perform those job functions.

The people who are working from home are the folks like you and me who can generally sit down at a laptop, access information, send emails, and attend Zoom videos. It’s not these hazardous types of workplaces.

But that doesn’t mean that you can’t be injured. I think that the injuries are much less sensational. Your employer would still be responsible for something like carpal tunnel that you develop while you’re typing on your laptop, or if you have back injuries from just sitting at the desk all day. I’ll call it an unsexy injury — and no offense to the people that have those injuries — but it’s not the type of thing that’s enumerated in statute. The statute talks about, “All right, how much is a finger worth? How much is a hand worth? How much is your eyeball worth?” Those are your typical industrial injuries.

I have wracked my brain all week to try to figure out what would be a difficult scenario. Say that you attend a Zoom meeting on your laptop, your laptop is plugged in, you decide to take a bath, and you get electrocuted. Well, are you working or are you on — and you’re going to love this — a frolic or a detour? Have you so deviated from your work that the employer should no longer be required to cover it? Granted, if you attend a Zoom meeting with no clothes on, it, you probably have greater problems than just your industrial injury! You probably aren’t going to be employed anymore!

If you’re injured in the course of doing your normal work tasks, Arizona doesn’t factor in contributory negligence like you would in a personal injury type of claim. So, if you’re dumb enough to do something like that — granted, I mean, there are exceptions, don’t get me wrong — but the employer might be responsible to cover your very, very stupid decision to attend a Zoom meeting in the bath.

Jonathan Negretti: Well, let’s use a less sensational example. Let’s say that you have this really nice setup at the office — a desk with the proper chair that supports your lumbar spine and back. You may even have a stand-up desk. Employers are limited on what they can do and what’s really reasonable. They can’t pay for every employee to have that same setup at their home.

Jessica Miller: Right.

Jonathan Negretti: And you may not even have the luxury of a home office or a situation where you can work, so you’re working on the couch or on the dining room table. Now you’re hunching over, and you develop a back injury. As I understand, from what you’re saying, you could make a claim there.

Jessica Miller: Yes, and you’re also getting into another territory, which is the Americans with Disabilities Act.

So, if your employer employs 15 or more people and you need a stand-up desk to work, you go to your doctor, who writes a letter saying, “You know, you have this, this, and this wrong with your back.” He will write a letter to the employer recommending an accommodation, which is a stand-up desk. Your employer has an obligation to engage in the interactive process with you. The employer has to provide you with a reasonable accommodation, unless it would impose undue burden. Basically, what undue burden means to me is the employer has to give you the stand-up desk, unless it is so prohibitively expensive that the employer can’t afford it.

You know, if you have an employer with maybe 15 employees and the stand-up desk costs $30,000? Well then, I don’t think that the employer has to give to it to you. That’s prohibitively expensive, depending on what business you’re in. But, if you’re employed by Amazon and you have a disability where you can’t sit at your couch, then I absolutely believe they have a duty to provide a reasonable accommodation at home, so that you don’t develop that injury. But that’s a completely different ball of wax. The ADA is a little bit different from a workplace injury.

Jonathan Negretti: Well, as our listeners can probably appreciate, this is a complicated area of law. It’s not as simple as a yes or no as it relates to workplace (at-home) injuries or COVID-19 injuries.