David W. Garland and Robert J. O’Hara, Members of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, co-authored an article in Law360, titled “Workplace Safety Class Claims Loom as Cos. Plan to Reopen.” (Read the full version – subscription required.)

Following is an excerpt:

The potential for employee class actions in the COVID-19 era is starting to emerge. While traditional class actions are likely to be filed in wage and hour discrimination cases related to layoff, furlough or other return-to-work issues, newer threats are looming — the failure to provide a safe workplace chief among them.

Since a global pandemic of this magnitude had not occurred since 1917, governments and many employers were caught short both with inadequate supplies of personal protective equipment, or PPE, and procedures for handling an airborne disease. Numerous press accounts from the earliest days of the battle against the virus by health care workers and first responders highlighted woefully inadequate supplies of PPE and lacking procedures.

PPE procurement efforts received prominent coverage at the White House daily briefings and from governors’ press conferences. The need was evident and widespread.

Moreover, employers looking for guidance turned to nontraditional workplace safety sources, the National Institutes of Health, the Centers for Disease Control and Prevention, and the World Health Organization, to name a few. Unfortunately, the infectious disease experts struggled with incomplete data and often provided conflicting guidance. It was a classic “fog of war” scenario — playing out on an international scale.

Now that the fog is beginning to lift and return-to-work procedures are being developed, employers are looking to minimize potential liability pitfalls as employees filter back into the workplace. The blame for the alleged failure to provide safe workplaces will be significant and is already rising.

Claims will no doubt be made that health care facilities and essential businesses, whose employees may or may not have contracted COVID-19, are liable for fatalities, hospitalizations, lost work and the subsequent spread of the disease to the community. Nurses’ unions in New York have already sought injunctive relief to force employers to provide adequate PPE so they can continue to battle the virus in a safe environment.

The guardian of workplace safety, the Occupational Safety and Health Administration is responsible for protecting employees in the workplace and requiring employers to provide safety procedures and equipment where needed. But with COVID-19, OSHA has not offered new airborne disease guidance; rather it has relied on the Section 5(a)(1) general duty clause of the Occupational Safety and Health Act, which requires employers to provide a safe work environment.

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