May 1st, International Workers’ Day, carries a new level of significance in the age of the COVID-19/coronavirus pandemic. It is no secret that workers who have been deemed “essential” to society functioning in the midst of this crisis are also the ones most at risk of contracting the coronavirus. The May 1 strike being led by Whole Foods, Amazon, Target, Walmart, FedEx, and Instacart workers is bringing to the fore potential liability for workplace safety issues. Workers have complained of lack of transparency from employers about COVID-19 cases within the workplace, as well as insufficient protective equipment, such as gloves, masks, and hand sanitizer.
While the Occupational Safety and Health Administration (“OSHA”) requires employers to establish a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm”, OSHA has only gone so far as to urge, rather than mandate, employers to follow the Centers for Disease Control (“CDC”) guidelines. Thus far, OSHA has declined to issue emergency regulations—which it has not done in 30 years.
The California Workers’ Compensation Act generally provides an exclusive remedy against employers for injuries or illnesses arising in the course of employment. However, there is an argument to be made that falling ill to COVID-19 at the workplace falls under one of the exceptions to this bar and thus allows workers to bring private suits against their employers.
The California Supreme Court has recognized that workers’ compensation exclusivity does not apply to claims involving “conduct that . . . contravenes fundamental public policy” or “exceeds the risks inherent in the employment relationship.” Courts consider whether “the alleged acts or motives . . . fall outside the risks encompassed within the compensation bargain.” Arguably, being subjected to a workplace that does not provide basic precautions to protect its employees from a highly contagious novel coronavirus goes beyond the risks inherent in most jobs.
One thing is for certain—the only way to move the economy forward and to combat this pandemic is to ensure that frontline workers are kept safe and are able to seek justice if employers fail to ensure their safety.