As workers face virus risks, employers seek liability limits

“We’re ‘essential,’ which means sacrificial,” Walmart worker says

The U.S. Chamber of Commerce is lobbying lawmakers for legal immunity in cases where workers get sick on the job or die of COVID-19. (Bill Clark/CQ Roll Call file photo)
The U.S. Chamber of Commerce is lobbying lawmakers for legal immunity in cases where workers get sick on the job or die of COVID-19. (Bill Clark/CQ Roll Call file photo)
Posted April 17, 2020 at 5:30am

The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies legal immunity if front-line workers believe they got sick on the job, or if families say their loved one died after catching COVID-19 at work.

Lawsuits from workers who were exposed to COVID-19 are “perhaps the largest area of concern for the overall business community” ahead of the economy reopening, a chamber memo to its members this week states.

The powerful lobby argues the sheer number of lawsuits could overwhelm businesses.

Businesses say they keep their workplaces safe, but the memo indicates that major corporations privately acknowledge that many so-called essential employees will get sick or die.

Conservative groups including Americans for Prosperity, the nonprofit founded with funding from businessmen Charles and David Koch, made a similar appeal to members of Congress in a letter this week.

“Vital industries that support our economy could suffer catastrophic bankruptcies,” the groups wrote.

The recommendation came as the White House was preparing its advisory plan to reopen businesses.

It also comes amid a climbing death toll of low-wage workers from across the country, including grocery store clerks and meat processing plant employees. In the last week, employees at the country’s two largest employers — Walmart Inc. and Amazon — have died.

Walmart already faces a wrongful death lawsuit in Chicago, where two associates who worked at the same store died.

Employees say they are increasingly fearful of catching the deadly virus at work. They say not enough is being done to protect them.

“We’re ‘essential,’ which means sacrificial,” said Jennifer Suggs, a Walmart associate in Hartsville, S.C. “Upper management, Walmart, they’re making their money. They do not care about us.”

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Suggs said her store allowed for a surge in foot traffic as demand for groceries and other goods increased since the crisis began, making it impossible to maintain a six-foot distance from customers. She said masks and hand sanitizer are not available.

“I have no protection. All I have is a stupid blue vest,” she said. “I never signed up for this. I didn’t sign up to be a hero. I did not sign up to put my health on the line every day. I never joined the Army or freaking military. Now everyday I’m faced with this pandemic and I could die.”

Suggs said she was running a fever earlier that day and had called out from work.

“I pray to God it’s not what I’ve got right now, because I really don’t have any health coverage,” she said.

Walmart spokesman Charles Crowson said Walmart began restricting the number of people in its stores on April 4. But that policy wasn't uniform across its more than 4,000 stores for at least a week.

He said the company on April 10 began offering associates masks and gloves upon their request and conducting temperature screenings. It's not clear if those occur at all its stores.

Risks

The Trump administration recently eased safety regulations across agencies for essential employees, referred to by the White House as “critical infrastructure” workers.

The Occupational Safety and Health Administration announced last week that it would not require corporations to report the number of COVID-19 cases among employees.

And the Centers for Disease Control and Prevention last week issued new guidance stating that essential workers who say they were exposed to the virus can be required to work as long as they show no symptoms.

The chamber argues companies should not face lawsuits so long as they follow CDC guidance and state and local health department guidance — which usually mirrors the CDC’s — and if the company wasn’t grossly negligent. They argue companies should be indemnified regardless of whether the CDC guidance was strong enough to prevent employees from getting sick.

“I do think if the companies are following CDC guidance, and that’s the government’s official policy, that’s not something they should be liable for. They can't be at fault for following what the premier public health agency is recommending,” said Amesh A. Adalja, an infectious disease expert and senior scholar with the Johns Hopkins Center for Health Security.

But it concerns some epidemiologists, who cite emerging evidence that asymptomatic people or people with mild symptoms could be important “silent carriers.”

“When this is all over we’ll see disproportionate deaths in those professions that can’t stay home,” said Gregg Gonsalves, a Yale School of Medicine epidemiologist. “The reason we’re social distancing is to cut our social networks and our professional networks. But it’s very difficult to maintain a distance at a dense Amazon warehouse or your stop-and-shop grocery store.”

It also concerns labor experts, who say that while these lawsuits are rare, a safe harbor could disincentivize companies from sanitizing work stations, providing protective equipment like masks and enforcing social distancing.

“The chamber’s proposals are all about shielding companies from liability, which is a particularly dangerous thing to do during the pandemic. Our laws should incentivize protecting workers and consumers, and the fact that companies could be held accountable for negligence is absolutely crucial to protecting people and public health,” said Terri Gerstein, a Harvard Law School Labor and Worklife Program director.

The eased CDC guidance has worried workers' rights groups and unions, who say requiring asymptomatic potential carriers to work could expose millions of more people to COVID-19.

“The loosened guidelines are dangerous, and risk exposing other workers and the public to infection, with supposed mitigation measures that are far less effective in reducing the threat of spreading the virus,” said Bonnie Castillo, a director of National Nurses United, the largest nurses’ union in the U.S., in a statement.

They say they could exacerbate the pandemic’s disproportionate impact on low-income workers, who are often African American or Latino and already at a higher risk of serious illness from COVID-19.

“Essential workers in food processing, agriculture, janitorial and many other critical industries are disproportionately workers of color, who are underpaid and already at increased risk of serious complications if they become infected with coronavirus,” said Rebecca Dixon, executive director of the National Employment Law Project, in a statement.

CDC guidance recommends that employees wear masks, have ample opportunities to wash their hands, and have their temperature checked before work. But that isn’t happening in many workplaces, employees say.

“When we first walk in the door … they have about seven different temperature check stations all lined up, one in front of another. But I can easily walk past all of that and just go straight to the time clock and clock in and just go straight to my station,” said Mario Crippen, an Amazon warehouse employee in Romulus, Mich.

Crippen said employees are incentivized to skip the temperature checks if they feel sick because they are paid for five hours if they have a fever — half of their typical pay for a 10-hour shift.

"Temperature checks are mandatory and if we found someone attempting to bypass this safety measure we would pursue disciplinary action," Amazon spokeswoman Kristen Kish said in a statement. Kish confirmed that employees with temperatures receive five hours of paid leave. Workers diagnosed with COVID-19 receive two weeks of paid leave.

Kish said company officials were saddened by the death of a manager in Hawthorne, California. "His family and loved ones are in our thoughts, and we are supporting his fellow colleagues," she said.

Limited rights

Legal recourse for workers who get sick on the job is already very limited, labor experts say.

“As a general rule, employees are precluded from suing their employer for a work-related illness,” said David Michaels, an epidemiologist and professor in the George Washington University Department of Environmental and Occupational Health.

Instead, workers can seek workers' compensation, which is an “exclusive remedy” that precludes litigation in most cases, Michaels said.

Still, Michaels said the chamber's recommendation could let employers off the hook for unsafe working conditions and is “short-sighted.”

“The chamber’s interests are always to promote the needs of the member corporations over everybody else in the country,” he said.

Democrats in Congress have pushed for OSHA to issue enforceable regulations in the form of an “emergency temporary standard,” which would spell out the measures workplaces have to take to protect employees from contracting COVID-19.

“I don’t think we should be providing companies blanket safe harbors given that many current businesses, which are currently operational, haven’t done enough to safeguard their workers,” said Rep. Ro Khanna, who unveiled draft legislation this week for a “bill of rights” for essential workers that includes stronger OSHA rules.

OSHA enforcement wouldn’t provide any legal remedy for the workers who could get sick right now.

“It sounds cold, but that’s not OSHA’s problem,” said a House Education and Labor Committee Democratic aide.

Meanwhile, it’s difficult to track how many people might be catching COVID-19 at work.

Crowson, the Walmart spokesman, said the company won't disclose the number of associates who tested positive for COVID-19. "We're maintaining the privacy of our associates regarding that," he said.

Walmart is "mourning alongside their families," Crowson said.

Angela McMiller, the sister of Phillip Thomas, one of the Walmart employees who died this month, said the company never followed up after her brother died. Thomas worked for Walmart for nine years.

“My brother was diagnosed when he was in the hospital. Nobody from Walmart spoke to him. If no one followed up with him, you wouldn’t know he had the coronavirus. So there’s a disconnect there,” she said. “My brother was family to Walmart, but Walmart wasn’t family to him.”