As employers bring employees back to work and attempt to navigate the difficulties of keeping their workplaces safe and sanitary, many employers are concerned about potential liability if an employee or customer contracts the Coronavirus. At the same time, many Minnesota workers are wrestling with their own confusion as to whether they must return to work if they are afraid to get the virus, have an underlying health condition, live with a relative at higher risk, or feel that their employer has not taken sufficient steps to protect them. Notwithstanding that there remains much to know about how the virus is spread, and best practices to minimize risk in the workplace, some plaintiffs are already initiating litigation against employers, or considering doing so.
As a result of the uncertain legal impact of the virus, both the Minnesota state government and the federal government have issued executive orders or have enacted or are considering legislation to modify employer liability related to the Coronavirus. These laws, as well as existing laws, address worker’s compensation, the work environment, and grant certain immunity for healthcare providers, among other things.
Executive Order 2054
Governor Walz’s Order 2054 (the “Order”) issued on May 13, 2020 addresses the concerns many Minnesotans have about returning to work and identifies several existing laws that may come into play. One provision of the Order is a prohibition against retaliating against workers for “wearing gloves, a cloth face covering, eye protection, or other protective gear which the worker has personally procured and reasonably believes will protect them, their coworkers or the public against COVID-19 in the course of their work, provided that the protective gear which the worker has personally procured does not violate industry standards or existing employer policies related to health, safety, or decency.”
In the Order, the Governor also referenced Minnesota Statutes 2019, section 268.095, and declared that “any worker who quits their employment because the employer has failed to correct an adverse work condition related to the pandemic which would compel an average, reasonable worker to quit, if the worker has complained to the employer about such adverse work condition and has given the employer a reasonable opportunity to correct such adverse work condition, to no avail, or has been retaliatorily terminated from their employment as a result of exercising the worker rights described in paragraphs 1 through 4 of this Executive Order, shall not lose unemployment insurance benefits eligibility.” Examples of an adverse work condition include an employer’s failure to develop or implement a COVID-19 Preparedness Plan, as required by applicable Executive Orders, or failure to adequately implement Minnesota OSHA Standards or Minnesota Department of Health and Centers for Disease Control Guidelines in the workplace related to COVID-19. 7.
The Governor also authorized and directed the Minnesota Commissioner of Human Rights to issue guidance regarding employers’ obligations to provide reasonable accommodations related to COVID-19 for qualified employees with disabilities, as defined in the Minnesota Human Rights Act (“MHRA”), which he said “may include employees with health conditions who are at high-risk, as determined by relevant guidelines from the CDC [Centers for Disease Control and Prevention] or MDH [Minnesota Department of Health], if they are exposed to or if they contract COVID-19.” The Order does not change the standard for “reasonable accommodations.” Retail salesclerks, for example, who have an underlying condition, cannot work from home, but they can be provided a plexiglass shield, face mask and disinfecting supplies. The Governor did suggest that reasonable accommodations related to COVID-19 could “include, but are not limited to, adjusting schedules or workstations, allowing employees to work from home, or permitting use of leave.”
On April 8, 2020, the Minnesota Legislature passed, and Governor Walz signed, a law to change the legal presumption such that whenever a first responder, health care worker, or a person working in certain other fields contracts COVID-19 it will be assumed to have been contracted on the job for purposes of workers’ compensation. The full list of covered occupations includes:
- licensed peace officers;
- health care workers;
- correctional officers;
- security counselors employed by the state at a corrections facility;
- emergency medical technicians;
- assistive employees employed in a health care, home care, or long-term care setting; and
- workers required to provide childcare to first responders and health care workers under Executive Order.
The law amends Minn. Stat. § 176, Subd. 15. Most of the cost of potential claims under this law will be borne by state and local government entities and health care providers.
The PREP Act
Healthcare providers and their employees have immunity from some claims related to providing care or treatment for Coronavirus. The Public Readiness and Emergency Preparedness Act (“PREP Act”) of 2005 authorizes the Secretary of Health and Human Services (“HHS”) to limit legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments, and vaccines. In a February 4, 2020 Declaration, the Secretary of HHS invoked the PREP Act and declared Coronavirus Disease 2019 (COVID-19) to be a public health emergency warranting liability protections for covered countermeasures. Under the HHS Declaration, according to the Congressional Research Service, “covered persons are generally immune from legal liability (i.e., they cannot be sued for money damages in court) for losses relating to the administration or use of covered countermeasures against COVID-19. The sole exception to PREP Act immunity is for death or serious physical injury caused by ‘willful misconduct.’ However, individuals who die or suffer serious injuries directly caused by the administration of covered countermeasures may be eligible to receive compensation through the Countermeasures Injury Compensation Program.”
Courts have characterized PREP Act immunity as “sweeping.” It applies to all types of legal claims under state and federal law. The PREP Act would likely preempt Minnesota tort laws regarding negligence or medical malpractice. In the PREP Act, Congress made the judgment that, “in the context of a public health emergency, immunizing certain persons and entities from liability was necessary to ensure that potentially life-saving countermeasures will be efficiently developed, deployed and administered.”
Health care providers should also note that Governor Walz issued Executive Order 20-46 on April 25, 2020 that allows certain doctors and nurses who are not licensed by the Minnesota Board of Medical Practice or Minnesota Board of Nursing, but are licensed in another state, to practice in Minnesota during the pandemic under certain circumstances.
New Federal Proposals
Congress is currently considering federal legislation as part of any additional forthcoming stimulus package that would bar lawsuits from customers and workers who contract the Coronavirus. Senate Majority Leader Mitch McConnell stated on May 12, 2020 that, “[s]trong legal protections are the right move for doctors, nurses, hospitals, schools, universities, for workers who want their jobs back, for small business owners who are struggling to stay open, for nonprofits that have helped the vulnerable and for taxpayers who want their money to finance a real national rescue, and not the biggest trial lawyer bonanza in American history.” The proposed legislation does not yet have a name.
Section 5(a)(1) of the Federal Occupational Safety and Health Act (“OSHA”), known as the “general duty clause,” states that “[e]ach employer shall 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.” In Minnesota, OSHA laws are enforced by a state division (“MNOSHA”) of the Minnesota Department of Labor and Industry. The general duty obligation for employers in this state is codified at Minn. Stat. § 182.652, subd. 2. Violations carry a maximum penalty of $25,000. No one knows yet precisely how this duty will be applied when the Coronavirus is potentially anywhere. The state of Minnesota has posted industry-specific compliance guidelines. These guidelines are a very important resource that Minnesota employers can reference to show they followed best practices.
Minn. Stat. § 182.654, subdivision 11, states that workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm. This could include a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with an infectious agent such as COVID-19. Employers cannot discriminate or retaliate in any way against a worker for the worker’s good faith refusal to perform assigned tasks if the worker has asked the employer to correct the hazardous conditions, but they remain uncorrected.
Pursuant to Minn. Stat. § 182.654, subdivisions 8 and 9, employers must not discriminate or retaliate in any way against a worker communicating orally or in writing with management personnel about occupational safety or health matters related to COVID19, including asking questions, expressing concerns or requesting a government inspection of their workplace if the employee believes that a violation of a safety or health standard that threatens physical harm exists or that an imminent danger exists.
Most employment law attorneys expect an increase in OSHA complaints by employees who are frightened to return to the workforce or believe that their employer is not taking sufficient steps to keep them safe. Employers must be very mindful, therefore, of the laws prohibiting and the penalties for retaliation against employees who complain to MNOSHA or other whistleblowers. Employees who prevail on a retaliation claim can be entitled to awards of backpay and compensatory damages.
Minnesota Statutes § 144.4196
An obscure protection for employees in Minnesota first enacted back in 2005 is getting new attention in light of the pandemic. Minnesota Statutes § 144.4196, Subd. 2-3, states that:
“Subd. 2. Protections.
(a) An employer shall not discharge, discipline, threaten, or penalize a qualifying employee, or otherwise discriminate in the work terms, conditions, location, or privileges of the employee, because the employee:
(1) has been in isolation or quarantine; or
(2)(i) is not in isolation or quarantine, but has responsibility for the care of a person in isolation or quarantine who is a minor or an adult family member who is a disabled or vulnerable adult; and
(ii) has assumed responsibility for all or a portion of the care voluntarily, by contract, or by agreement.
(b) A qualifying employee claiming a violation of paragraph (a) may bring a civil action for recovery of lost wages or benefits, for reinstatement, or for other relief within 180 days of the claimed violation or 180 days of the end of the isolation or quarantine, whichever is later. A qualifying employee who prevails shall be allowed reasonable attorney fees fixed by the court.
(c) Nothing in this subdivision is intended to alter sick leave or sick pay terms of the employment relationship.
Subd. 3. Limitations.
The protections of subdivision 2 do not apply to work absences due to isolation or quarantine for periods longer than 21 consecutive workdays. However, absences due to isolation or quarantine for periods longer than 21 consecutive workdays resulting in loss of employment shall be treated for purposes of unemployment compensation in the same manner as loss of employment due to a serious illness.”
Minnesota employers should be wary of terminating any employee who might be considered in “quarantine” for the virus.
Minneapolis Sick Leave Ordinance
Employers should keep in mind that the Minneapolis Sick Leave Ordinance allows use of paid sick time for:
“The closure of the employee’s place of business by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material or other public health emergency.”
“To accommodate the employee’s need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material or other public health emergency.”
Minnesota Ordinance § 40.220 (b) (4) and (5) (emphasis added). This paid time would be in addition to and taken after qualifying sick leave under the Families First Corona Virus Response Act (below.)
The Families First Coronavirus Response Act
The federal Families First Coronavirus Response Act, which took effect on April 1, 2020, provides, among other things, certain leave rights and paid sick pay for employees affected by the virus. More information can be found in our previous post. This Act amends both the Family Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”). Employers that violate the requirements can be sued under the FMLA or FLSA.
Minnesota employers and businesses can expect a litigation fallout in the months to come related to COVID-19 and the disruption and uncertainty it has wrought. Federal legislation now under discussion may bar some of these claims, but taking careful steps now is the best vaccine to avoid liability. All Minnesota employers are advised to have and implement a return-to-work plan as set forth in Executive Order No. 20-48.
If you have concerns about potential liability for your business related to the COVID-19 pandemic, contact the business and employment law attorneys at Trepanier MacGilis Battina P.A.
About the Author: Minnesota employment law attorney V. John Ella advises employers regarding best practices in the workplace and compliance with state and federal employment laws. He can be reached at 612.455.6237 or at firstname.lastname@example.org. Trepanier MacGillis Battina P.A. is a Minnesota business law firm located in Minneapolis, Minnesota.