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COVID-19 Cases Dip, County Increases Protections For Employees In Health Order

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The amendment to the county's public health order, which went into effect Thursday morning, will require all employers to inform employees of any COVID-19 outbreaks or cases at a place of business. Previously, the county recommended employers disclose outbreak information but did not require it.

Speaker 1: 00:00 Our top story as the single day, Corona virus, death toll in California breaks a record for the fourth time. This month, San Diego County officials are beefing up enforcement on employers compliance with public health orders and effective today. The County is requiring employers to notify all their workers. If there is an outbreak of COVID-19 in their workplaces, joining me to sort out the ramifications is legal analyst, Dan Eaton partner in the San Diego firm of seltzer, Caplan McMahon, and Vtech. Dan, welcome back to the program. Good to be with you, Mark. Well, let's start with this new County order. A prior to this update of the county's public health order, what were the requirements of businesses in terms of reporting coronavirus outbreaks?

Speaker 2: 00:44 Well, not outbreaks so much, but, uh, employers have a statutory duty, uh, to provide their employees with a safe and healthful workplaces. And so, uh, that required employers to alert employees who had been in contact with someone, the employer learned to tested positive for COVID-19 that they had tested positive without identifying the employee who had actually contracted COVID-19 due to privacy concerns, this expanse, that duty to notify someone.

Speaker 1: 01:17 Okay. Yeah. What's the, what's the difference here with the county's action today?

Speaker 2: 01:20 Well, the difference here is that you have to employers now have to alert their entire workplace. Uh, if there is an outbreak as defined in the public health order. And that is because the assumption is it could affect more people. And this Corona virus is something that everyone has to take seriously, as we have learned over the last year.

Speaker 1: 01:46 And, uh, when we're talking about an outbreak here, it's three or more people, right? Who and exposed

Speaker 2: 01:50 That's right. That's right. And the thinking is that if you have that many people, you are going to talk about all that many more people who have been exposed and people who have to take precautions, even potentially shutting down the workplace.

Speaker 1: 02:05 Are you surprised it's taken this long to require employees be notified of an outbreak at work,

Speaker 2: 02:11 Sarah, and I'll tell you why because of the Corona virus, as I have said before, is moving faster than the speed of law. Regulators, legislators, even the courts are doing their best to catch up with coronavirus, but we're sort of learning as we go in responding as legal matter to the ramifications of the

Speaker 1: 02:33 Grown a virus. And what rights do employees have to refuse to return to work? If there's a covert exposure in the workplace.

Speaker 2: 02:41 Key to that sentence, Mark is if there is a COVID exposure, the fact is that employees cannot be required to return to our workplace, that they reasonably believe is not safe. And if someone continues to be in the workplace who has contracted COVID-19, then an employee may refuse to return. But if, as usually happens, the employer sends that person home right away, sanitizes provides the appropriate alerts. There really would not be a right for an employee and the private sector Outwell workplace to refuse to return.

Speaker 1: 03:19 And if a workers are concerned about their safety and all, but the job is open and there can, they still claim unemployment benefits. If they refuse to go back to work after learning of an outbreak,

Speaker 2: 03:32 A trickier question Mark than you think it might be because the bottom line is if they voluntarily refuse to come into work and it is not viewed as one that is compelling or justifiable, then they may not be entitled to unemployment benefits, pure fear of getting the Corona virus without a art and articulated reason for believing. There is a fear of contracting. It may be treated as a voluntary job abandonment, and in that case, unemployment benefits would be unavailable.

Speaker 1: 04:04 And I want to talk about liability. We're hearing that a lot in the national news now with the, uh, the discussion Washington over the latest COVID supplements, that's being worked out, how exposed are businesses to lawsuits. If employees get sick after a workplace outbreak and how tough would it be to prove such a claim?

Speaker 2: 04:22 Well, those are excellent questions. And the bottom line is that, uh, for the vast majority of employees, if they get sick in the workplace from COVID-19, they're limited to workers' compensation, but governor Newsome made, uh, the ability of employees to collect workers' compensation somewhat easier. Uh, in recent weeks, when he said that in the reopened workplace, if an employee contracts COVID-19 having returned to the workplace, it's going to be presumed that the employee contracted COVID-19 in the workplace, meaning that it would be a work related injury for which they would be able to get workers' compensation.

Speaker 1: 05:02 And would that be a, the extent of the damages there? They could get a competency worker compensation benefits, and would there be other, uh, damages that might be claimed

Speaker 2: 05:13 For employees? Yes, but here's the interesting thing about your question. What about those with whom the employee comes in contact? What about vendors who do not have an employment relationship and therefore are not limited to workers' compensation? That's why the scope of the potential liability is so troubling. And so destabilizing to employers who really don't know exactly how far their liability will extend workers' compensation provides some assurance of a limit of liability to employees themselves. The problem is how far beyond that and to whom employers may also be liable for exposure to the Corona virus that is traceable in some ways to the work environment.

Speaker 1: 05:55 And I imagine that might chill some owners who are considering reopening.

Speaker 2: 05:59 Oh yeah, sure. Well, uh, this, uh, Corona virus has children, awful lot of activity. And, uh, the fact is that there are all kinds of other legal ramifications because if you're allowing a workers to work from home, then there's a duty to reimburse for work-related expenses. Uh, and if you don't, there is liability for failing to provide that reimbursement for necessary work expenses for working remotely. We have, we can only imagine the full extent of the legal liability that will come from this Corona virus. The health effects of, of the Corona virus are about enough. And in some case, mortally tragic, the legal consequences are also very serious and will be with us years after science finally conquers this awful, awful scores that we are facing, right.

Speaker 1: 06:52 And a one to ask about the legal liability issues for businesses, sharing health information about employees is that waived in a, in a pandemic crisis.

Speaker 2: 07:01 It's not, and some employers seem to think that by having their employees sign a health waiver, they are somehow excused from liability. That's just not correct. Uh, and the fact is that you can't just have your employees sign a health waiver and hope that you're going to get out of potential workers' compensation liability with respect to privacy. It's very important to understand that even if an employer learns that an employee has contracted COVID-19 and therefore has a duty to at least alert those with whom even an individual employee who's contracted has had contact, they cannot identify the worker who has contracted COVID-19 because the employee has privacy rights and there are serious damages to the employer beyond workers' compensation for violating an employee's right in that regard.

Speaker 1: 07:53 And how important will enforcement be in terms of this public health order change

Speaker 2: 07:57 Enforcement is going to be critical. You've heard about how a, the County, uh, is going to ratchet up the enforcement of the, uh, public health order. Now there are some talk that in the early stages, uh, they are going to use the carrot to encourage voluntary compliance, but let's be very clear given the gravity of the situation, the carrot is going to yield soon enough to the stick, especially for willful offenders.

Speaker 1: 08:25 I've been speaking with San Diego legal analyst, Dan Eaton. Thanks Dan. Thank you, Mark.

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