Facing Potential Liability, Employers Act To Protect Regular Workers From COVID-19

At a local Trader Joe’s grocery store, a clerk wore a colorful handmade cloth face mask.

A customer last week complimented her on the mask and the clerk said it was given to her by a customer who was concerned that she lacked protective equipment during the worst health crisis in 100 years.

Many workers are now asking why their employers have not shown the same regard for their health as the Trader Joe’s customer.

But this is changing and one reason is that employers realize they face potential liability for failing to protect their workers from contracting COVID-19.

On April 3, the U.S. Centers for Disease Control recommended that all people wear cloth face coverings in public and “especially in areas of significant community-based transmission.”

Walmart, the largest private employer in the United States, is a defendant in one of the first COVID-19 lawsuits filed by an employee against an employer. The family of Wando Evans, 51, a 15-year veteran employee of a Walmart store near Chicago, IL, charges Walmart with negligence and wrongful death. Evans is one of two employees at the Walmart store who died of complications related to COVID-19.

Walmart has begun installing “sneeze guards” at registers and is providing protective masks to employees who want them.

OSHA Complaints

Meanwhile, thousands of workers have filed complaints under the Occupational Safety and Health Act’s general duty clause, which requires employers to “furnish to each of his employees employment and 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.”

Oregon Public Radio reported this week that Oregon’s workplace safety agency has logged more than 2,000 complaints in recent weeks, as many as it normally gets in a year. Most complaints involve whether a business should be open at all and how businesses that are permitted to stay open should act to protect the health of workers and customers.

Health officials in Oregon last week started recommending workers wear facial coverings, especially indoors when maintaining a six-foot social distance boundary is not possible.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has not made it easy for non-health care employers to navigate the pandemic.

OSHA issued a temporary COVID-19 guidance for employers of healthcare workers but has not promulgated any specific standards for non-health care employers who are providing essential services.

OSHA states on its web site that “some OSHA requirements may apply to preventing occupational exposure” to non-health care workers. Among the most “relevant,” says OSHA, are OSHA standards that “require the use of gloves, eye and face protection and respiratory protection.”

OSHA encourages employers to review California’s Aerosol Transmissible Disease standard, which applies to health care workers at hospitals, clinics, emergency medical services, laboratories prisons and homeless shelters, etc. The California standard requires employers to provide personal protective equipment at no cost to the employee during the employee’s working hours.

A spokesperson for OSHA failed to respond Friday to an email and a telephone call requesting comment.

Walmart Lawsuit

According to the Walmart lawsuit, Evans complained to supervisors that he had COVID-19 symptoms but was ignored. He was sent home from work on March 23 and was found dead two days later.  

Another employee at the same store died on March 29 from complications due to COVID-19.

The lawsuit alleges Walmart failed to properly clean the store and to provide workers masks, gloves, antibacterial wipes or other protective equipment.

Walmart said it conducted a “deep cleaning of key areas” in the Illinois store, adding it passed a health department inspection.

In a statement on March 31, Walmart announced it had made “significant operational changes” in our stores and clubs and was “starting” to install sneeze guards at checkout and pharmacies, using wipes and sprayers for carts, putting in signing for social distancing, and implementing a COVID-19 emergency leave policy.

“While the CDC and other health officials do not recommend masks or gloves for healthy people who don’t ordinarily use them for their jobs, we will make them available — as supplies permit — for associates who want to wear them,” said the statement. .

Additionally, Walmart said it would “begin” taking the temperatures of workers and asking them basic health screening questions. Workers with a temperature of 100 degrees will be paid for reporting to work and asked to return home and seek medical treatment if necessary. The worker will not be able to return to work until they are fever free for at least three days.

Walmart announced earlier this week that, starting Saturday, it will limit the number of customers who can be in a store at once. Stores will now allow no more than five customers for each 1,000 square feet at a given time, roughly 20 percent of a store’s capacity.