One of the many questions we have received regarding the COVID-19 pandemic relates to employer liability for COVID-19 related lawsuits. The Cleveland Plain Dealer reports that 70% of entrepreneurs in Ohio are concerned about potential liability related to the pandemic. Such concerns are not unfounded; a number of lawsuits have cropped up across the country attempting to hold employers liable for transmission of the disease in the workplace. These concerns have been amplified as more and more employers return to the “new normal,” and begin welcoming back employees and customers in ways that are beginning to resemble the pre-COVID world.
In response to these concerns and to help with the transition into reopening, the Ohio legislature recently passed House Bill 606, providing immunity to employers and school officials from lawsuits related to COVID-19. Specifically, the bill protects individuals, schools, health care providers, and businesses from lawsuits arising from “injury, death, or loss” due to “the transmission or contraction” of COVID-19. The bill also states that public health orders from both the state and federal government do not create duties for purposes of liability. In practice, this means that employers and businesses cannot be sued in Ohio because someone – like an employee or customer – contracted COVID-19 while at work or while doing business with the employer. Employers and businesses also cannot be sued by employees or customers for failing to adhere to state or federal government public health orders.
Despite the new protections, employers and businesses need to remember that several areas of potential liability remain. First, based on the text of the bill, businesses and employers are not immune from liability based on reckless conduct or intentional, willful, or wanton misconduct. The bill defines “reckless conduct” as “conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such conduct” is likely to expose or transmit COVID-19 to another person.
Next, it is important to remember that the immunity extends only to state civil tort liability. This means employers can still be issued citations by state and federal authorities for failing to adhere to public health orders. For example, most employers must continue to require employees to wear masks unless specifically exempted by the Ohio Department of Health. And restaurants must continue to ensure six feet of distance between parties during waiting and dining. The Occupational Health and Safety Administration (OSHA) has also indicated that they consider the General Duty Clause – a broad standard requiring employers to provide a workplace free of hazards that are likely to cause death or serious harm – to require employers to provide protections against the spread of COVID-19 in the workplace. But beyond just citations from authorities, adherence to public health guidelines is important for returning all businesses and the economy at large back to normal. The CDC has stated that the use of masks or face coverings is effective in controlling the spread of COVID-19, leading to fewer outbreaks and fewer business closings.
Finally, the immunity does not protect employers from suits which are related to their COVID-19 policies. This includes discrimination related to enforcement of employer policies during the pandemic, whistleblower retaliation complaints, failure to accommodate suits, and wage and hours suits. In fact, just this month, a Columbus restaurant chain was sued under the Fair Labor Standards Act for a unique pay structure they attempted to implement with their bartenders during the pandemic. House Bill 606 has no effect on this lawsuit and will not shield the restaurant chain from potential liability.
In summary, while House Bill 606 provides some protection for employers from lawsuits directly stemming from the transmission of COVID-19, employers must still be conscious of other, more traditional theories of liability they faced prior to the pandemic. Employers should also remain in compliance with all public health orders from the federal and state governments related to the pandemic.
The attorneys at Fishel Downey regularly work with employers to ensure compliance with federal and state laws. If you have a specific scenario or complaint in regard to these issues, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.