Several weeks ago many Amazon warehouse workers staged a call-out to demand increased protections against COVID-19. They want Amazon to shut down facilities where employees test positive and provide two weeks of paid leave, among other demands.
Elsewhere, the family of a Walmart employee who caught the virus at work has filed a wrongful-death suit against the retailer.
Businesses are struggling with how to operate during a pandemic. How can restaurants reopen and survive financially while not infecting their employees and customers? Can office employees come back to work, and what social distancing safeguards should they follow? Do factory assembly lines need to be redesigned?
How should the law respond to the choices businesses make in answering these questions?
Many employers fear that the threat of lawsuits will deter businesses from fully reopening. They have a point. Americans are litigious, and businesses already face huge uncertainties and costs. Republicans in Congress are demanding a liability waiver as part of the next stimulus bill.
Many unions, meanwhile, fear that employers will cut corners on safety in rushing back to business. They too have a point. Businesses face huge financial pressure, and managers do not have an encouraging history of solicitude for their employees' interests. Some Democrats are demanding that the Occupational Safety and Health Administration (OSHA) issue an Emergency Temporary Standard imposing responsibilities on employers to guard against infection.
We need a way to reopen the economy while not unreasonably endangering workers. A compromise could address both concerns.
Congress could direct OSHA to issue a new standard. But rather than requiring all employers to follow that standard, the legislation would treat it as a safe harbor. Companies implementing the standard would be immune from liability should some employees become sick. Though not required, companies would have reason to adopt the standard. For companies that do adopt the standard, the threat of liability would diminish.
This compromise is worth adopting, but it has problems. If OSHA's standard is too demanding, companies won't adopt it. If it is too weak, it will allow companies to avoid liability without adequate safeguards. Businesses vary by industry, size, location, and a host of individual circumstances — one national standard that usefully addresses all those variations will be hard to craft.
There is a related approach that could do even better. A business would be immune from liability if it followed a virus safety plan approved by its employees. OSHA could still provide suggested guidelines, which companies and their employees could choose to adapt to the needs of the business. Other public health or industry groups could suggest alternative guidelines. The National Restaurant Association could adopt an employer-oriented set of guidelines for its industry, while the hospitality union UNITE HERE could propose more employee-protective guidelines. Individual firms could look to these examples in determining what safeguards would work best.
Safety plans for each workplace would allow more flexibility than one national standard. Approval by employees would give some assurance that the plans were not too weak. Guidelines from OSHA and others would help businesses and their employees be aware of relevant issues and options.
Employee involvement would help businesses craft better plans — employees know their workplace and can be a great source of ideas. Involving employees in adopting the plans would help ensure that they understand those plans and the reasons for them, making them more likely to effectively follow the plans.
For business owners, they would get a liability waiver, more thoughtful plans, and a chance to increase the loyalty and commitment of their employees. Since employees need to get back to work too, they share many common interests with owners.
If an owner feels her employees are making unreasonable demands, she can always choose not to use the safe harbor and reopen without an employee-approved plan. If one thinks that then puts employees in a hard position, we could add a further protection. If a company did not adopt a plan or the OSHA standard, employees could refuse to work and still get unemployment benefits if they think their workplace is unsafe.
Perhaps American businesses and Congress are not ready for this level of employee involvement. If so, an OSHA-generated safety standard that acts as a safe harbor against liability would be a big step. It is better than the business proposal to waive liability without complying with any standard, and better than the union proposal to impose a new standard on all businesses. Such a compromise could remove a main obstacle to the next coronavirus bill.
But imagine employees in Amazon warehouses or Walmart stores helping to craft safety plans that fit best with their workplaces. Businesses could continue or reopen without fear of liability, and workers would have a voice in protecting themselves. Going that extra step further would be worth it.
Brett McDonnell is the Dorsey & Whitney Chair at the University of Minnesota Law School. Matt Bodie is Callis Family Professor and co-director of the William C. Wefel Center for Employment Law at St. Louis University School of Law.