OTA Dispatch Issue 3, 2020

21 www.ortrucking.org Issue 3 | 2020 3 Common Questions on How Employers Can Limit Liability in the COVID-19 Era By Laura Salerno Owens and Anthony Blake, Markowitz Herbold PC AS EMPLOYERS AROUND the country gradually adjust to running their businesses amid a pandemic, many look for legal mechanisms to shield them from employee- related COVID-19 liability. Here we address three common questions we’ve received about how employers can avoid liability. EMPLOYEE WAIVERS Probably the most common question we receive is whether employers should require employees to sign COVID-19 waivers. The answer is probably not. Though, in theory, employee waivers seem like a pragmatic solution, we advise our employer clients to think twice: Asking an employee to sign a waiver related to COVID-19 is likely a violation of Oregon public policy. That’s because injuries in the workplace are governed by a certain set of laws and compliance with those laws cannot be released by contract. Generally, when a worker gets hurt on the job, the worker may only obtain recovery under the Workers’ Compensation Law. In the context of the current pandemic, an employee’s recourse for contracting COVID-19 at work would also be through a workers’ compensation claim. If an employer has workers’ compensation insurance, a waiver should not be necessary. Employees already face an uphill battle trying to prove that COVID-19 is an occupational disease—as defined by the workers’ compensation law—that they contracted at work. Additionally, though not the largest representative sample, a recent survey by a national law firm revealed that of the approximately 150 employers who participated, only 8% of them mandated waivers for employees and 94% of them chose not to require waivers for customers or clients. However, you might be able to require independent contractors to sign waivers because workers’ compensation laws do not cover independent contractors. For employees, rather than using potentially unenforceable waivers, employers should protect themselves by following Occupational Safety and Health Administration (“OSHA”) and Centers for Disease Control and Prevention (“CDC”) recommended physical distancing and cleaning procedures to the best extent they can. They can also require employees to sign an acknowledgment of those procedures and an agreement to comply with essential policies. If a claim is brought outside of the workers’ compensation system, such agreements can help establish a contributory negligence defense if a party is injured because of that party’s own failure to comply with an essential rule. LIMITATION OF LIABILITY LAW Considering all the confusing, and sometimes conflicting, information regarding how exactly COVID-19 spreads, another common question is whether the law will change in such a way that enables employers to operate their businesses without fear of frivolous lawsuits. In the nation’s capital, the $1 trillion Help, Economic Assistance, Liability Protection and Schools (HEALS) Act proposed by members of the Senate would protect employers from employee lawsuits related to COVID-19 in the workplace. Under the proposal, employees who believe they caught the coronavirus at work and moved forward with a lawsuit against their employer would face a tougher standard of proof than required for a common negligence suit. The bill would allow this limited immunity for a five- year period, and it would even extend to COVID-19 related personal injury and medical malpractice suits. Given that the bill is currently the center of debate for the nation’s leaders, however, only time will tell if this employer liability shield comes to fruition. For what it’s worth, both plaintiff and defense attorneys across the country have argued that the proposal is overbroad and impractical. KEEPING THE WORKPLACE SAFE Employers often ask us, “If I can’t use waivers and if I can’t get protection from the law, how can I limit liability?” Our best answer is for employers to institute procedures that will keep their workplace as safe as possible. Because of the unpredictable nature of the coronavirus, we encourage employers to remain flexible in how they maintain a healthy work environment. In addition to following CDC and OSHA guidelines, employers should do the following: ` Conduct frequent worksite assessments to identify any strategies that could further help prevent the spread of the coronavirus in their particular workplace. ` Designate a managerial level employee or team of employees to be responsible for responding to any COVID-19 concerns. ` Create, per CDC recommendations, a plan about what to do should a driver become sick on the road, such as where to stop, where and how to seek medical advice and treatment, and plans for freight delivery. ` Consult CDC recommendations for cleaning and disinfecting a building if someone is sick, along with its recommended practices for cleaning and disinfecting cabs and trailers. ` Provide protective equipment to employees and contractors.