New coronavirus cases in the U.S. appear to be flattening, and many are calling for a reopening of America — including the return to work. 

Yet, there is no consensus and much remains uncertain, with both sides of the aisle questioning the timeline and protocols to do so.

Suzanne Clark, president of the U.S. Chamber of Commerce, said in a recent letter on the subject, “we don’t have all the answers today — or even all the questions.” 

But White House Economic Adviser Larry Kudlow told CNBC “Businesses, particularly small businesses that don’t have massive resources, should not be held liable — should not be held to trial lawyers putting on false lawsuits that will probably be thrown out of court.”

As some states — like Georgia, Iowa, North Dakota, Oklahoma, Tennessee, and Texas — begin to reopen retail, restaurants, and outdoor recreation, one question looms above the rest for SBOs: Can my business be held liable for COVID-19 transmission in the workplace?

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Can I be held liable for coronavirus transmission in the workplace?

Maybe. 

There are a few ways in which businesses could be held accountable for exposing their workers to COVID-19. 

• Workers’ compensation: To be eligible for workers comp, most states require the illnesses contracted at or through work to be “characteristic” of the job. 
• Civil suits: If a claim is not compensable through workers’ comp, employers may face civil litigation in tort court. 
• OSHA violations: Employers are responsible for providing a workplace free of recognized harm. 

Workers compensation

“First, workers who contract COVID-19 while in the course of their employment may be eligible for workers’ compensation, depending on the state statute” says Joseph Slater, Professor of Law at The University of Toledo. 

Workers who contract COVID-19 while in the course of their employment may be eligible for workers’ compensation.

But only in some states. Slater points out that only a small number of states allow workers’ comp for any illness contracted on the job, while the majority permit claims if the illness is “characteristic” to the job, like if a health worker were to contract COVID-19. 

Civil suits

Turns out that isn’t exclusively good news for employers. 

“If workers’ comp does not cover a type of workplace injury or illness, the employee is permitted to sue the employer in tort for that injury or illness,” said Slater. 

To do successfully, the employee would have to prove negligence on the part of the employer — a precedent the legal world hasn’t yet established in this pandemic. The first labor and business disputes related to COVID-19 will be landmark cases that establish precedent for the ones that follow. 

OSHA violations

OSHA’s general duty clause requires the employer to provide employees with “a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

If there’s a recognized hazard — like COVID-19 — and employees don’t take reasonable steps to protect employees, they could face OSHA violations under the general duty clause. 

According to OSHA, employers are responsible for providing personal protective equipment (PPE) in environments where these are necessary for a safe workplace.

Here’s where it gets complicated: According to OSHA, employers are responsible for providing personal protective equipment (PPE) in environments where these are necessary for a safe workplace. But if PPE is recommended for all work environments as the country re-opens, it will be impossible to source the necessary equipment.

In her letter on the return to work, Clark urges clarity from the federal government on this matter. 

“The federal government should make clear that PPE recommended specifically to combat the spread of COVID-19 is not subject to the normal OSHA requirements around workplace PPE.”

Here’s what you can do to protect your business

While we don’t know exactly what employers are likely to be held liable for, we do know a carefully considered return to work program — with accompanying documentation — will best position employers for potential legal action. 

Make a return to work plan

Think about how you’ll handle:

Social distancing requirements

Rearrange the office layout, create one-way entrances and exits to curb face-to-face contact, and implement shift work, if possible. 

Employees who’ve had COVID-19

COVID-19 is a communicable disease and not a disability. Therefore, employers can require employees to disclose to HR if they’ve had it. Mandate that employees receive medical clearance before returning to the workplace.

Temperature checks

The EEOC states that employers can require temperature checks for all employees entering the workplace to reduce community spread — but employers should keep in mind that not all people with COVID-19 have a temp. 

Face masks

The CDC recommends that everyone wear face coverings or masks in public, and EEOC has released guidelines indicating employers can require the use of PPE in the workplace. Kindly share the facts with employees and provide instructions for proper wear and hygiene for masks. 

While we don’t know exactly what employers are likely to be held liable for, we do know a carefully considered return to work program — with accompanying documentation — will best position employers for potential legal action. 

Create a communicable illness policy 

If your SMB doesn’t have a communicable illness policy, protect your business and employees by creating one ASAP and updating your employee handbook. 

“An employer with no communicable-illness policy in a time of the clear and self-evident rising risk of exposure to COVID-19 could be subject to lawsuits related to workers’ compensation, unfair labor practice, and negligence,” says lawyer and CEO of legaladvice.com David Reischer. 

Communicate with your employees

Talk to your employees. They’re your best litmus test to find out how your team feels about returning to work. If your people are feeling nervous, uncertain, or unclear on how they’ll manage family members who may still be home, consider extending tele-work arrangements. 

We recognize this isn’t possible or practical for large swaths of small businesses. If that’s the case, take a thoughtful approach to your return to work plan to ensure you’re helping keep everyone as safe as possible.