Opening amid COVID-19 pandemic: Businesses want a legal shield, workers want accountability
WASHINGTON — Larry Schwartz, whose IT firm is dedicated to helping people work remotely, has found himself consumed with the arrangements of a physical office in the midst of a global pandemic.
The owner of Midnight Blue Technology Services in Robinson has studied the government’s COVID-19 health guidelines like a final exam, investing in glass dividers that raise the height of cubicle walls and protect the receptionist’s desk. He has allowed only one or two other employees to work at a time. And he working with managers to craft written policies for client visits and handling of equipment that may be sent to clients.
Despite the preparation, Mr. Schwartz said he still feels anxious. He knows the virus is an invisible enemy that could infect any one of his dozen full-time employees at any point in their commute or home life. As a business owner, he doesn’t want to be held liable if he follows all the rules.
The goal is to “at least make sure we have the policies, and if we know of any breaches, we can deal with them,” Mr. Schwartz said. “So at least we can start from there and reduce our liability with ourselves and our clients.”
That tricky situation is unfolding for business owners across Pennsylvania as the state begins to allow businesses to gradually reopen. In the weeks and months ahead, the collective re-imagining of the workplace includes a looming question on Capitol Hill and in Harrisburg: Who, if anyone, is liable if an employee or customer gets sick?
Senate Majority Leader Mitch
McConnell, R-Ky., pledged that legal protections for business will be a “red line” for Senate Republicans in any future COVID-19 legislation.
Rep. Guy Reschenthaler, RPeters, said last week he would support legislation that makes sure “there aren’t frivolous lawsuits.”
“There’s a middle ground we could probably work out, but there has to be some kind of protection, or some kind of standard, to incentivize businesses to come back without the fear of repercussions in court,” Mr. Reschenthaler said.
Democrats, meanwhile, said they would not support any measure that could shield businesses that shirk federal health guidelines and sicken workers or customers.
“Is he saying that if an owner tells a worker they have to work next to somebody who might have coronavirus without a mask or PPE, that that owner wouldn’t be liable? That makes no sense,” said Sen. Chuck Schumer, D-N.Y., the Senate minority leader.
Last Wednesday, Pennsylvania Gov. Tom Wolf, a Democrat, signed an executive order providing immunity for many health care professionals treating COVID-19 patients. That immunity, the governor emphasized, does not extend to criminal acts of gross negligence, fraud or other willful misconduct.
Trade groups say the success of Pennsylvania’s plan to reopen its economy will hinge on a similar protection for business owners.
“This is absolutely crucial,” said Gene Barr, president and CEO of the Pennsylvania Chamber of Business and Industry. “We
will not get the start up we need unless we provide limited liability to businesses.”
“We’ve already seen trial lawyers advertising on social media for clients,” Mr. Barr added. “And we know it’s gonna happen to our members when they try to come back. They’re gonna get hit with this.”
Gordon Denlinger, Pennsylvania state director of the National Federation of Independent Business, said he worried his group’s members — about 15,000 small businesses — would resist opening because of those trial lawyers’ advertisements, which he characterized as saying: “If you dial this number, we can make you rich.”
“We don’t need our small business owners being fearful about doing what we need them all to do, and that’s to get their businesses back online and their people back to work,” Mr. Denlinger said.
Lawsuits related to COVID-19 have begun to spring up.
A pandemic complaint tracker created by Hunton Andrews Kurth LLP counted 859 cases nationwide, most of which involved prison conditions in New York, insurance claims and severed contracts.
In Pennsylvania, there were 31 cases, mostly involving businesses that want their insurer to cover financial losses due to the pandemic. Lawsuits recently filed by restaurants in Highland Park and Ross were among those cases.
Yet the legal threat to businesses may not be as high as they fear.
The burden of proof for someone who believe they contracted a communicable disease at a specific workplace would be high, rendering the liability question moot, said Michael Rosenzweig, co-managing partner at Edgar Snyder and Associates, the Pittsburgh personal injury law firm.
“I’m generally against limitations of liability, because it punishes businesses that are careful and sort of subsidizes businesses that aren’t careful,” Mr. Rosenzweig said.
But he said, “We want people to return to work. And, if they do contract COVID-19, they can least collect workers compensation for the time period they are sick.”
Thomas C. Baumann, a workers’ compensation attorney in Pittsburgh, said such cases would be expensive for lawyers to build, requiring supporting documentation from doctors that establishes a connection between the illness and the workplace — all for little benefit for someone who is forced to stay home from work for a few weeks due to a moderate illness, Mr. Baumann said.
But in the case of an employee death or serious illness that involves steep hospital bills and documentation of federal workplace safety violations?
“Those cases may get pursued,” Mr. Baumann said. “Would I take one of those on for the right client? Yeah. Would I take 10 on? I don’t know any lawyer that can do that.”
Feds on alert
Yet with shortages of personal protective equipment like masks and gloves, federal workplace officials have been on alert.
Since Feb. 1, the Occupational Safety and Health Administration has received 423 complaints and referrals related to COVID-19 in the Mid-Atlantic region, according to the most recent data last week. The top sources of OSHA activity were hospitals, nursing homes, the postal service, doctors offices and supermarkets.
In addition, nearly 1,000 whistleblower complaints have been filed nationwide with OSHA, and 77 were docketed for investigation as of last week.
The agency would not provide more detailed information for the Pittsburgh region.
Mr. Schwartz, owner of Midnight Blue, is itching to get his employees back to some sense of normalcy.
The company’s employees confronted a “huge culture shift” working from home — just as demand for its services and troubleshooting skyrocketed from clients forced to keep their employees working at home. The company faced an initial 300% jump in inquiries from clients, Mr. Schwartz said.
Easing back into the company’s space, Mr. Schwartz said he is still trying to anticipate everything that could go wrong. And put it in writing.
“If we touch a laptop that we’re setting up brand new for a client, what’s the policy on disinfecting it before it goes out the door? Do you wipe it down or do you let the client deal with that?” he said.
“You can’t turn into a police state either,” he added. “If we haven’t defined what the policy is, and what some of the best practices are, then [employees] are going to decide for themselves.”