Coping with COVID
6.9.20 | Season 1, Episode 6 | 56:10
Kim Askew, partner, DLA Piper
Patrick Casey, senior counsel, Sidley Austin LLP
Anton Hajjar, former general counsel of the American Postal Workers Union, AFL-CIO
Cynthia Estlund, Catherine A. Rein Professor of Law at NYU Law School
Samuel Estreicher, Dwight D. Opperman Professor of Law, director, Center for Labor and Employment Law, and co-director, Institute of Judicial Administration, at NYU Law School
Production by ALI and the Bolch Judicial Institute. Music is ‘Headway’ by Kai Engel, from the Free Music Archive, CC BY.
David Levi: Hello and welcome to coping with COVID a series jointly produced by the Bolch Judicial Institute of Duke Law School and the American Law Institute. This series examines the impact of the COVID-19 epidemic on the legal system. I am David Levi, President of the American Law Institute and director of the Bolch Judicial Institute.
The current public health crisis has raised a variety of new challenges in the workplace. What is the employer’s responsibility to keep employees safe? Can an employee refuse to work or share medical information without adverse consequences? Today I’m joined by lawyers and scholars who are on top of these and other very complex issues of fairness and law. Kim Askew is a partner at the law firm of DLA Piper. She is on the council of the American Law Institute. Patrick Casey is senior counsel with the law firm of Sidley Austin. Anton Hajjar is the former general counsel of the American Postal Workers Union, AFL-CIO. He is a member of the council of the ALI. Cynthia Estlund is the Catherine A. Rein Professor of Law at NYU law school and a leading scholar of labor and employment law and workplace governance. Sam Estreicher is the Dwight D. Opperman professor of law and director of the center for labor and employment law at NYU law school. He was the chief reporter for the ALI’s restatement of employment law.
Thank you all so very much for taking your precious time to talk with us today about these rapidly evolving legal issues. Let’s start with you Anton, since this program was your brainchild, let’s imagine a workplace that is a transmission site for COVID-19. What rights does a worker have under the NLRA to refuse to work in such a workplace? And then what consequences might there be for an employee who refuses to come into work?
Anton Hajjar: Well, the National Labor Relations Act has two provisions that bear on your question. The first is Section 7, which is a right of employees to engage in concerted activities. Cynthia Estlund will address some of the details of that, and then there’s section 502 of the National Labor Relations Act that empowers employees to refuse to work under dangerous working conditions.
Let me start first with Section 7. There’s been a lot of press about OSHA and whether it’s doing its job and state and local health officials, but employees have a lot of power to take matters into their own hands and refuse to work or take other actions, like publicity, protests that kind of thing, if they feel that their workplaces is unsafe. Section 7 is the basic right of employees to engage in concerted activities for mutual aid and protection. Concerted activities — as it sounds — is more than one or trying to round up fellow employees. And it’s an interesting provision in the law because it really deals with collective rights, not individual rights like most statutes. This right covers both union and non-union workers. This one, as I said, it’s one of my favorite subjects because I like to think that even in a non-union workplace, workers are not powerless. Section 502 is an interesting provision. It probably has its most important application in a union setting. And it was aided in the Taft-Hartley amendments in 1947. And it says, in part, and I’m reading, “The quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions of work,” is not a strike. So there are certain things you should note about that. Number one, it covers both an individual and employees collectively. It hence would cover union and non-union workers as well, but the provision about a strike has its most salient application in a union setting.
Finally, section 502 requires more of employees to justify their refusal to work, and I’m reading now from the National Labor Relations Board decision in TNS in 1999. It’s still the law and it’s not much law under it since TNS, but this is what it says, “In order to establish that a work stoppage is protected under the section 502, the general counsel must demonstrate by a preponderance of the evidence that the employees believe in good faith that their working conditions were abnormally dangerous, that their belief was a contributing cause to the work stoppage, that the employee’s belief is supported by ascertainable objective evidence, and that the perceived danger posed an immediate threat of harm to employee health or safety.”
So, under Section 7, I’m sure Cynthia will explain, the standard is much lower in terms of what employees have to believe in order to be protected by Section 7. I’m gonna hit two caveats here or two or more caveats. One is that the definition of an employee under the National Labor Relations Act is going to be different under different statutes, such as unemployment compensation, unemployment insurance statutes, such as workers’ compensation statutes, such as state laws, particularly now in California where there is litigation about whether gig workers, such as Uber workers, are employees or independent contractors. But for the National Labor Relations Act, independent contractors are excluded from coverage. There’s a very excellent section of the restatement of employment law chapter one, I think it is, that deals with independent contractors. Now we’re talking about an industrial setting. If you’re talking about a healthcare setting, those are different issues because there’s another section of the National Labor Relations Act, AG that requires notice before not only strikes but also other kinds of concerted activities. I’m not going to get into the intricacies of that.
So the last point I’d like to make is that there is, I think, a distinct advantage to employers who are unionized here because if they can devise with the union of comprehensive, detailed measures to keep employees safe, that will have two advantages. One it’s going to have credibility with the workers. But as we talk about liability, there are intricacies of NLI preemption that might actually give employers a preemption defense against a tort suit, if the employer is following the collectively bargained measures for safety in the workplace.
David Levi: Thank you. You’ve covered a lot of ground, and you did that beautifully in such a short period of time. Cindy, what are some of the other issues under Section 7 when employees feel that — as they’re going to — that the workplace is not as safe as it possibly could be, whether because they’re standing too close to other people, or they’re not happy with the air handling, or maybe the face masks aren’t being provided, that sort of thing.
Cynthia Estlund: Yeah. So thanks so much for inviting me to talk here. Anton has covered the basics quite well. To be protected by Section 7 the activity has to be concerted. As he pointed out, there is a pretty low threshold for that. It has to be for mutual aid or protection, which is just something that is of concern to employees as employees and safety is as good as it gets in meeting that category. But even activity that meets those broad criteria can fall outside the scope of Section 7, if it is unprotected in the means or manner in which employees express their concerns. So a work stoppage is not beyond the pale, is clearly protected, and there’s this great 1961 Supreme Court decision Washington Aluminum in which employees just spontaneously walked off the job because it was too cold — no demonstrated health and safety issue. So it doesn’t have to be a reasonable health-related concern as it does under 502, for example. So that’s okay. They do have to be careful if employees are going to quit work or refuse to work. They have to be a little careful. If they stay on the premises, if they occupy the premises or sit in the course of their work stoppage, they can run into trouble. They can fall outside the scope of protection.
The other thing — Anton already mentioned that public criticism of the employer is fair game. It is a form of protected concerted activity, but again, employees can run into trouble if they’re not careful. They’re most protected when they’re focusing on threats and concerns of workers. Somewhat ironically, they are less protected if they are pointing out that the public is being exposed to risks. So workers agitating for workers’ own concerns, as long as they don’t cross the line into defamation and they don’t engage in violence or gratuitous destruction or anything like that, are pretty widely protected. Only, we should note the caveat, there’s no private right of action here. So all you get to do if you have a claim under the National Labor Relations Act is to file a charge with the National Labor Relations Board, which may or may not pursue it, and that’s a decision of the general counsel. It’s a very broad protection that a lot of non-union employers, every time this pops up, employers seem surprised that this protects more than union activity. It’s only been around since 1935 though, so I guess that’s understandable.
David Levi: Well, suppose I’m a worker at, let’s just say, a non-union location, and I have one of these risk factors for COVID. Let’s say I have a severe case of diabetes, and I don’t want to talk about this with other workers, but I don’t feel safe and I don’t want to come in. And I say to my employer, “Unless I can stand six feet apart from everybody, I’m not coming into work. It’s not safe for me.” And the employer says, “I can’t do that.” What happens then? I don’t go in, can I apply for unemployment?
Cynthia Estlund: Well, unemployment is one of those things that for those of us who deal with labor law a lot wave our hands about, and that’s state law. So state law is going to set the standard for what is compensable unemployment. But if you are fired, the employer will have the burden of showing that you’re engaged at — the standards vary a little bit — but that you’re engaged in some kind of misconduct that basically the employer was justified at a pretty high level of justification in firing you. So that’s a matter for state law, but I would just say it raises interesting questions of federal preemption. If the state were to say that the employer was justified in firing someone. If their decision to refuse work was itself protected by federal law, say, if it was concerted activity, which is a little different from the hypothetical that you gave, perhaps if the 502 criteria are met. It’s an interesting preemption question. States can deny unemployment compensation for strikers. For example, even though they’re engaged in protected activity, this seems distinguishable to me, but that’s an issue that we might see percolating as well.
David Levi: I think [regarding] your comment that “Oh, that’s state law,” I think we may see a resurgence of state law. I talked to one labor lawyer who said, “Oh, we’re all having to learn workers’ comp law now, it’s become so important.” And Patrick you may be exhibit number one for this. You are in the process of advising businesses that are considering reopening or remaining open. What do you tell them that they need to think about in terms of providing a safe working place and staying safe themselves under the law?
Patrick Casey: Thanks, David. The first thing that I tell employers is that under Section 5 A1 of the Occupational Safety and Health Act each employer has a general duty to provide a safe and healthful workplace for its employees. So there’s a legal duty to do that, and the problem that we have with COVID-19 is that we can’t eliminate the potential for the contagion in the workplace. So we have to do the best that we can. And that generally means following CDC guidelines, and OSHA has set out some guidelines for employers and also for alerts, they sent out some alerts for particular industries. State and local governments have set forth and public health departments have set forth guidelines.
And you have to look at each employer case by case because your workplace is going to be different depending on what you do. An office is very different than a manufacturing production line. And so there are different challenges. So what I tell employers, if they’re returning to work, get a group of people together, get a team together, put together a plan, and put together a playbook as to how you are going to safely allow your employees back into work.
David Levi: What about the worker’s comp regime? Are you looking at that?
Patrick Casey: And it does vary state by state. There are a couple of hurdles that employees need to overcome with respect to workers’ comp. The first is they got to show that they caught COVID-19 at work. In other words, it was work-related and given the ubiquitous nature of this virus, this is very difficult to do. Secondly, once they do that, then they have to overcome another bar to show that the employer either acted with reckless disregard, or knowing, or whatever, did not adequately protect the employees, but it’s a high bar. So it has to be almost intentional. You have other issues with different states. Some states don’t cover occupational diseases. Other states do cover it. Some states are now, and it’s in a “state” (pardon the pun) of flux because legislatures and governors are now ordering sometimes the presumption to change. Usually, it’s the employee’s burden to prove that it’s work-related, but for some people on the front lines whether healthcare workers, whether they’re in meatpacking plants that have a COVID-19 outbreak, whether they are in essential businesses that would have contact with the public where the virus could be, then some states are now changing that presumption. So that if you are in one of those industries, or if you are an essential employee and you’re working with the public or you’re a healthcare worker, they will presume that if you caught it, it is work related. But it’s all in a state of flux and it goes state by state.
David Levi: Well, we’re going to try to make some sense out of that. Anton mentioned one way in which employers might get a liability shield. And that was through unionization and the preemption that the collective bargaining agreement might give to some kind of tort suit. We’re now talking about workers’ comp, maybe it gives protection to the employer and maybe it doesn’t. Sam, you’ve been looking at this, liability shields. Are there safe harbors here for the employer?
Samuel Estreicher: Right. Before I get to safe harbor, workers’ compensation has a double edge to it. On the one hand, employees want compensation for their injuries. The flipside, however, is all civil tort actions will be barred. So it’s not clear. I’ve heard that California has made noises they want to extend the coverage of workers’ comp, but it has the flip side of excluding tort actions. It may be if you could attract adequate counsel, you may be better off in a tort system. It’s an irony of the situation. There’s liability if worker’s comp doesn’t bar it. There’s liability also under state tort law. Our restatement of employment law covers that subject in chapter four, I believe, liability under state, health law, occupational, safety law. So the workers’ comp issue is a complicated issue. I think coverage is unclear in many states on liability shield. [There is] a lot of talk about liability shields. The only liability shield I’m aware of that’s been enacted into law is Governor Cuomo’s midnight legislation to confer shield on nursing homes in New York State. It was a provision in an omnibus spending bill. That’s the only one that I know of that’s been enacted, but there’s a lot of action in the state’s employers and business organizations like the chamber of commerce wants some sort of liability shield. I’ve not seen actual texts, but the commentary on these proposals is there would be an exception for reckless behavior, maybe gross negligence.
I’m not actually a fan of the liability shield. I don’t think it’s good policy. So because as Patrick pointed out, every workplace is different. I think the employers should have some degree of safety if they comply with all of the various guidances that are out there. And that should count as to whether or not there’s a viable cause of action. I think most plaintiff lawyers will not be attracted to a case where, in fact, the employer has complied with the various standards that have been pronounced by the agencies. The standards provided that these agencies provide them their guidance can’t actually erect an all-purpose liability shield. First of all, OSHA can say certain things. I think would have to do it in a rulemaking not in a guidance, and that takes time. ERISA does not have rulemaking authority. It only has guidance authority. So that’s one problem. Also, their remit is limited to their statute and they would not be able to confer shield with respect to state and local claims. And as you said David, state and local law is important here and has always been important here. So I did speak about agency guidance. There is, in fact, a good faith defense under the Occupational Safety Act under the Age Discrimination Employment Act under Title 7 as well. If the guidance were written clearly enough to make clear that if you do X, Y and Z, we believe you have not violated the law. And by the way, the existing guidance do not say that. But if they did say that, there would be a basis for a good faith reliance on those agency pronouncements, which would be helpful under those statutes. Again, not under all statutes but under those statutes. I do think that if the employer should comply with the CDC and OSHA and EOC guidance, I think that’ll be very helpful, as I said, in dissuading plaintiff lawyers from taking the case. And it’s some proof that the employer acted reasonably. If a statute is enacted, it would have to be enacted because I think there’s limited authority in these agencies, I don’t know if we would be enacted to also bar state and local law. It would be an interesting question. How does the federal government get involved now in precluding state and local accident law? Maybe the unusual circumstances of COVID justify it.
David F. Levi: We’ll see what happens. Kim let’s think about this workplace that may or may not be safe and let’s suppose that we have an employer who wants it to be safe and thinks that well, one way to ensure safety is to test everybody when they come into the workplace, take temperature, and then maybe even, ask some questions, like all of us are being asked: Now, have you experienced any fever in the last 48 hours? Have you traveled anywhere? Is anybody you know have COVID, and maybe ask even more probing questions? Do you have any kind of underlying condition that might make you vulnerable? What if they then act on that information? They might also ask you how old you are, and then tell you at some point after this interview, well, we don’t think you should come into work today, or we won’t let you come into work today. Can you comment on some of the discrimination and privacy and just overall fairness issues that may follow from the effort to make a workplace safer?
Kim Askew: It’s one of the most difficult issues that an employer faces right now, but there is guidance, which really changed what the practice was prior to this pandemic. I think this is important where for the employer to really look at what the EELC [has said] and other guidance that has come out. In April, the EEOC came out and said, “Yes, employers can conduct mandatory testing for a COVID now, and there are certain questions they can ask related to COVID.” So it’s very important for employers to know that, given that the CDC has said that employees who have COVID should not be in the workplace, the employer has to be able to ask the kind of questions to protect that workplace. And part of what they can do is to administer a test and the EEOC has made it very clear that an employee with COVID poses a direct threat to the health and safety of the workplace. That’s the standard that we have always looked at under the Americans with Disabilities Act. Is it job-related? Is it business necessity? And if you are trying to protect that workplace, it is job related. It is business necessity.
Most employers are doing viral testing. The important thing to note about that is what you’re testing is the current situation employee. Do they have COVID at the time you conduct that test? So the employer should still be engaged and [following] all the other infection control procedures that the CDC recommends, like social distancing and hand-washing— I’m sure we all wash our hands quite a bit lately — can do temperature checks, disinfecting the workplace. The only thing you must try to make sure that you’re using a test that’s accurate and reliable. We know that there are real questions about the accuracy and reliability of all tests for COVID at this point. But the EEOC says, check out what the FDA says, use those tests in the workplace.
This raises a host of issues related to privacy because when you are testing; when you are eliciting information from an employee as an employer about their health condition; when you’re asking those questions, like “Do you have chills or fever?,” there’s a whole outline of what the CDC says. These are the symptoms of a COVID, you’re asking those questions. The confidentiality of that information must be maintained. It is employee health information, and it’s important to understand the full range of what this information is. It is not just the test. It’s when the employee calls in and says, “I think I’ve got a fever today and I think it’s COVID,” or “My cousin Joe in the backyard told me he had it and we shared a beer the other day.” If they are telling you things about their health then that is their health information. If your HR person, if your nurse is asking them questions, [then] that is protected health information. If you’re taking temperatures and you maintain a temperature log, if you have questionnaires, as David mentioned, as part of the plan to get back into the workplace where employees are telling you about their health, you need to maintain the confidentiality of that information. Again, the ADA has requirements, which talk about how this must be maintained. And the EEOC guidance tells us what we need to do. One, it needs to be confidential, and it needs to be stored separately from that personnel file. Do not put that medical information in the personnel file where it has access to a lot of people. Now the medical file does not have to be a separate COVID file. It just has to be a medical file that is maintained separate and apart from that personnel files.
So one, in conducting these tests, there are procedures you can put in place to try to maintain confidentiality. You can use numbers on the test. You don’t have to say this is Kim’s tests or David’s tests. You don’t have to take the temperatures in a place where everybody can look at it and know that I had a fever at a certain temperature that day. So as part of the plan that Patrick talked about, think about ways that you can, in addition to maintaining the confidentiality of this information, conduct these tests in a way that gives the employee privacy. Yes, there are claims if you fail to protect this information under the ADA, and we go back to invasion of privacy, the intentional intrusion upon seclusion. And if this information is allowed to get out and the employer is responsible, that could be an intentional inclusion upon seclusion. And of course, it would have to be highly offensive to a reasonable person. And if you’re putting out what my body temperature is on a particular day, it might be very, it’s of course, it’s a fact-intensive analysis. But again, it is something the employer always has to think about.
Very briefly, the discrimination laws did not go on vacation. Title 7, the Age Discrimination and Employment Act, all of these laws still apply in the situation of COVID. I want to, in particular, mention national origin and race discrimination, because the chair of the EEOC issued a statement with respect to that. Those types of discrimination, and those of us who help police the workplaces need to make sure that is not occurring. So if there is an action taking place in the workplace based on national origin or race, especially with persons who are Asian American or persons of Asian descent, it is something that as those of us who advise employers really need to make sure that we’re looking at. Retaliation is alive and well, we cannot take adverse actions because someone has requested leave. They came to you and say, “I’ve got COVID” and you say, “I’m now going to fire you” or somebody else knows that somebody else in the workplace has it. So yes, retaliation is a cause of action that is alive and well.
The Americans with Disabilities Act that is very important to remember because although COVID itself is likely not a disability under the ADA, it is transitory. What you’ve got to look at are the underlying health issues. And the CDC has a list of all those underlying issues that persons — especially of a certain age — and this is why age becomes really important and thinking about what’s happening in the workplace. And they say, “Well, you know I’m over COVID. I don’t have COVID, but I’ve got hypertension or I’ve got diabetes, or I’ve got something else,” then that may qualify as a disability, and those are both medical conditions that can qualify as disabilities under the ADA. The employer needs to go through the interactive process. And it doesn’t have to be the detailed process that we may use. It’s just a matter of the doctor saying yes, special accommodation is needed. Look at those reasonable accommodations, and the big ones that we talk about now are really teleworking, remote work.
What happens when the employee says, “I’ve got this condition, I cannot come into the workplace.” I just want to briefly mention the Family’s First Coronavirus Response Act. We get another acronym. With the FFCRA you’re entitled to certain leave related to COVID, and this is government-granted leave that was created in April. I think most employers know about it now, but if somebody comes and says, “I need leave because I have COVID, I think I have COVID, my doctor’s testing me for COVID. Sometimes even there’s someone in my family with COVID in my house, I’ve got a treat. I gotta be home with my kid, who can’t go to daycare or school because of what’s happening out there with the pandemic.” This new act says there’s certain leave, so watch those denials of leave or retaliation based on the fact that someone has requested leave or the denial of leave. Finally, just to mention the Family Medical Leave Act, the FFCRA amended the Family Medical Leave Act, FMLA and FFCRA may overlap. So even if all leave is exhausted under FFCRA, the employee may have rights under the FMLA. So, the employment laws are alive and well.
David Levi: It’s complicated.
Kim Askew: It is.
David Levi: And it seems like it’s going to be very fact-specific. So, I’m thinking just as you were talking, I was thinking, let’s suppose somebody who does not have COVID and there’s no reason to think that they do. But they do have, as you say, hypertension and they’re over 65 and they might be very comfortable if the employer would say, “Here’s an accommodation for you, you can work from home.” On the other hand, if you imagine a school setting, let’s say a university or a college, or a law school, and the university were to say, “All students who have hypertension or diabetes or obesity, or some of these other factors, you cannot come to school. You have to, in effect, go to class by Zoom and we’ll make that available to you.” That would not probably be acceptable to those students. They would feel some kind of stigma with it, or they would not think, “This is great, I don’t have to commute.” They would think I’m being deprived of person-to-person contact with my peers and with my professors. So it’s going to look different in different places.
Kim Askew: It really does look different. You know I find myself doing flow charts, like, okay, we got this piece, we’ve got this piece, we’ve got this piece, and I think sound practice says that the employer really tries to work with the employee in a way which accommodates the ADA. We’re in the middle of a pandemic, and so often the accommodation that’s been requested employers are already doing it. So, if you already have most of your workplace that did telework during the period… The local stay home order said “Okay, now we’re telecommuting,” then it’s very hard to say that telecommuting or working remotely won’t be a reasonable accommodation when that employee comes back.
David Levi: So, Cindy, let’s go back to you for a minute here. You’ve been studying COVID in automation. What are you looking at?
Cynthia Estlund: Well, I’ve been studying automation generally, but the COVID crisis has sent up a bunch of flares as if workers didn’t have enough to worry about, right. I think there’s good reason to believe that COVID is likely to accelerate automation trends. So first, we have to recognize that lots of work is currently automatable given technology that already exists, about 50% according to some really careful studies. But the process of automation — of actually automating automatable jobs — can be very slow, and it’s not a smooth process. It’s hard to disentangle automatable from non-automatable tasks, and there’s a certain amount of entropy in how people organize production, reluctance even, to displace incumbent workers. So historically most automation tends to occur in response to shocks, especially economic downturns. So it’s easier for firms when demand is down and they’ve laid a bunch of workers off. That’s the point at which they are likely to rethink their production processes and maybe introduce some innovations that will save them money. It’s even easier for new entrants to a sector. Economic shocks, downturns tend to accelerate both exits and entrances and new entrants have much less to worry about, they just will hire fewer people and adopt a more capital-focused, capital-labor mix. And so this is obviously just on economic grounds. This is an epic economic downturn that is likely to trigger a wave of automation and make permanent the loss of a lot of jobs that people hope we’re going to be temporary.
There are also some obvious, in particular, COVID-related reasons why automation may be spurred by this. Person-to-person contact, which is a huge part of many service industries is going to start being viewed as a risk, and people are going to start doing it with fear and concerned about liability, concerned about public health, concerned about their own health, and so people are going to get used to or even choose automation — automated service options that they might have shied away from, or just not figured out. Like I have always shied away from automated checkouts. I haven’t bothered to learn how to do it. It’s not easy for me. If I get used to it in this climate of fear and concern, that’s going to be an opportunity because clearly those retailers are chomping at the bit to introduce that automated checkout, and this will increase customer acceptance. So all of these are reasons why I think we just have to give a lot more thought to the possibility of a future of less work.
David Levi: Yeah, that’s a great example, by the way, I am with you on that 100%, I have never figured it out, but I’m going to figure it out now. Although I don’t like the idea that it’s taking somebody’s job. Sam, back to you. What about gig workers? How are they going to be affected by the COVID pandemic?
Samuel Estreicher: Well, there’s always an issue about whether they are gig workers or employees. If they’re treated as independent contractors, then they’re generally not covered by the unemployment insurance law, by the workers’ compensation law, by almost any of the laws that Kim mentioned. I think there’s going to be a movement over time to figure out a way to come up with an employment law for non-employees. I’m giving some thinking to that as well. Ironically, on the worker’s comp front and not being employees on a workers’ comp, they may have a tort action, the class action, all that sort of thing. That’s an irony that’s there. We’ve seen, I think, Congress has extended unemployment insurance to the gig workers during this COVID situation, which raises another question, which is whether or not the users of the services of gig workers are being subsidized by the rest of the employer community, because unemployment insurance is supposed to be something that’s funded by the employers, as well as workers’ compensation insurance. It’s an insurance scheme, but it’s funded by the employers and by the employees, and so you have a whole category of folks that are being treated as gig workers. We’re extending unemployment insurance to them for very good and sound reasons. During this period, we don’t want them interacting with their customers. And the question is: Does it make sense for there to be this subsidy that goes to that part of the labor picture where employers are treating their people as independent contractors? So that’s another. So on one hand, they’re not covered by the health insurance plan of their employer. They’re not covered by workers’ comp, not covered by employment insurance, and on the other side, there may be more flexibility for the state tort system to respond.
David Levi: Anton let’s go back to you for a moment here. The AFL-CIO has sued OSHA seeking injunctive relief, requiring OSHA to issue an emergency safety standard or set of standards. Can you tell us what this is about?
Anton Hajjar: Sure. The labor movement has been trying to get OSHA to issue an infectious disease standard for quite a while. There is a general duty clause under OSHA, but to be honest, or I should say to editorialize, I think OSHA has been missing in action. At least the AFL-CIO says OSHA has been missing in action, but it’s simply not enforcing it. And [OSHA says] there’s no emergency. OSHA can issue an emergency standard, but they haven’t done it so far. So on May 18th, the AFL-CIO filed a petition for mandamus to compel OSHA to issue an emergency standard within 30 days. That’s case number 20- 1158. I mention it because it’s very well documented. I really commend anyone to look at it if you want the whole big picture with all of the footnotes. They’re saying that especially not only essential workers but workers are going to be called back to work and are going to need a standard that applies today. The court is requiring a response from OSHA on May 29th. The panel is Henderson, Wilkins, and Rao, and it’ll be very interesting.
If I may mention there’s another interesting lawsuit along the same lines supported by SEIU that’s been filed in the state court, in Cook County, Illinois, that is against McDonald’s, McDonald’s subsidiaries, and the McDonald’s franchise owners claiming that McDonald’s has put out a comprehensive, they say, mandatory comprehensive standard of care that all of the McDonald’s empire must follow. So the plaintiffs are taking them up on that and said, “Okay, you stated a standard of care, so that’s a tort case there.” [McDonald’s] has been arguing and succeeding recently before the NLRB to say that they are not joint employers with their franchise, these and subsidiaries. Now they’re going to be hard-pressed to say that they’re entitled to workers’ compensation immunity for all of their subsidiaries and all of their franchises. So that case is worth watching.
The other theory of liability is a public nuisance. We’ve read about public nuisance because it was used in Oklahoma to create liability for opioid for the opioid epidemic, and that is being tested. There was a prior lawsuit that was dismissed in Missouri that was based on a public nuisance theory and also requiring a standard of care, and the District Court there said, “Well, the primary jurisdiction for that is OSHA.” So now, the AFL-CIO is saying, “Well, OSHA is not doing anything so we can skip OSHA’s primary jurisdiction and go straight to court.” So there’s some of the interesting, creative litigation that is going on.
David Levi: Thank you. Well, we’ve covered a lot of ground. We’ve talked about agency action or inaction, liability shields, concerted action discrimination, the various kinds of discrimination and privacy laws. Why don’t we go around the table, so to speak, and see if you have follow-on thoughts. Patrick, let’s start with you, on any of these topics that we’ve covered, particularly that are so pressing right now as the country starts to open up and people begin to go back to work and in big numbers. Patrick.
Patrick Casey: Yes. I mean, for some of the lawsuits that are suing employers for unsafe workplaces, you’ve got some issues with preemption, right? With Federal OSHA, I will say that there are 22 states and U.S. territories that have their own state OSHAs that apply to private employers, and they’ve had to have been approved by federal OSHA. And one of those states, Cal/OSHA does have an aerosol transmissible diseases standard, but it only applies basically to healthcare workers and clinics. And as far as I know, Cal/OSHA has not extended that to other workplaces. If the court forces OSHA to issue an emergency temporary standard, and OSHA’s position, of course, is going to be, “No we’ve got these guidelines out here. We’ve done sufficient enough to give employers notice as to what they need to do, and et cetera.” But if they do that, if the court forces them to do it, my guess is they will look at that aerosol transmissible diseases standard that Cal/OSHA has enacted and then try to expand that a bit to more generic workplaces.
David Levi: Interesting, Cindy, any further thoughts?
Cynthia Estlund: I would just point to not so much a legal issue as maybe a political issue. We’ve been reminded of how many of our very essential workers in this context are also very low wage workers, and I’ll be very curious to see whether that changes debates about how to rebalance the economy. I’ll stop there.
David Levi: Sam.
Samuel Estreicher: Well, we’ve focused a lot here on liability issues, but there’s a joint interest in getting the economy back on its feet. If people aren’t working, including the low wage workers that Cindy mentioned, we’ll have a social revolution in this country, if people can’t work. So, we’ve got to think outside the litigation box a little bit as well. I’m not arguing for the liability shields, but I’m arguing for kind of sense of partnership here on this issue because I think there more unites us than divides us. On testing, I’m a little unsure where that’s going to lead, because if someone tests positive they’re not positive for a very long time.
Kim Askew: Right.
Samuel Estreicher: How long are they positive for? And if they test positive, do they now carry antibodies? I’ve just taken an antibody test. Can employers now ask folks to show that they’ve taken an antibody test? So there’s a lot of great, many very difficult questions here. I actually think this is an area for negotiated rulemaking because there is a joint interest in getting America back to work rather than having this potpourri of legal issues coming up with. A common set of rules here would make a lot of sense–
Kim Askew: And you know, the EELC, the regulatory agencies should know, this is all hitting us so fast. They haven’t addressed those issues. When we talk about testing, we’re talking about viral testing, do you have COVID at the time of that test–
Samuel Estreicher: Right.
Kim Askew: Antibody testing now, employees/employers can make sure you don’t have it because they can administer a test or have your doctor email and say, “You no longer have the virus as of that day, but what they are real issues down the line.”
Samuel Estreicher: Yes true.
Kim Askew: And Patrick mentioned this, and this is something employers can do right now. You mentioned the word partnership, Sam, when we’re developing those plans to come back to work — get the people in the workplace.
Samuel Estreicher: I agree.
Kim Askew: The employees know what bothers them, that somebody could sneeze on them or whatever. Get their buy-in. They’ll tell you what room they want the temperatures taken in, and whether they think that’s reasonable. So this is an opportunity for a partnership. I think we’ve got to do it because the lawsuits are coming. Every day, every time there’s a COVID lawsuit filed in the United States, I get a pop up on Google, they’re the wage and hour claims. All right, you had me stand in line to take this test, and are you going to pay any amount of overtime? They’re the wrongful termination claims, this happened because I knew about COVID in the workplace or a complaint. So one way to get ahead of this is that partnership we are talking about, and this is when we’ve all have to be in it together. This is a pandemic. We’ve got to get people back to work. My solution, the first thing I look at as one who advises employers, how can we get to a safe workplace where employees are comfortable coming back to work?
David Levi: Anton.
Anton Hajjar: Yeah. I just would mention under liability there is a liability shield provision in the Defense Production Act that would cover the meat industry. Privacy is interesting to mention, telecommuting. I read that after there is software that permits employers to monitor their employees and they don’t even know it. That they’re checking that they’re actually working and they’re not doing other things.
Samuel Estreicher: My wife doesn’t get it.
Anton Hajjar: I have to say I agree with the general thrust of what people are saying. We need to have a common social solution to this so we can get back to work. I was shopping just yesterday at a local Giant Food store. It’s unionized. I have always asked them, “How is the union doing, what’s the union doing for you?” They’re all saying positive things that they are exposed every day to people coming and going in that grocery store, but they feel secure because they feel like there’s a credible program to keep them safe, and they have faith in it.
David Levi: That’s looks really good. Sam, we’re going to end with you because this is an ALI production and you were the chief reporter on the restatement of employment law. That restatement did not probably anticipate an international pandemic of this sort but portions of it can provide a lot of help here. Anything, in particular, you want to tell us?
Samuel Estreicher: As I mentioned before, the chapter on the employer’s duty to maintain a safe workplace, including hiring and firing decisions, tort liability in that context, and also privacy, we’ve tried to sort of modernize privacy away from the internal rhyme of intrusion upon seclusion and take that insight and expand a bit on it. So privacy may come back as well as an important area of American law–
Kim Askew: Well, yes, because so many of those claims are gonna be brought under state law, and state law so much of it is still intentional intrusion upon seclusion.
Samuel Estreicher: Yes, you’ll have to use that terminology, but we’ve tried to expand it a little bit.
Kim Askew: Aha, no. I’m talking law.
Samuel Estreicher: So nice, it’s a great internal rhyme to.
Kim Askew: I’m talking case law.
David Levi: Thank you all so much. We’re going to leave it here. That was very enlightening, I think in some way inspiring this idea that we all need to work together on. This is probably the most important piece of wisdom that I think you all shared, and that means everybody has got to get something, get some benefit from working together, and overcoming this virus.
Thank you so much for your time today. These employment issues are so complicated, and they involve state and federal and agency law, and they’re changing by the day and the factual settings are so critical. As we open up the economy, open and maybe close, and open and close, these issues are going to be omnipresent and changing.
Thank you to our panel for what each one of you is doing to try to help the country get to a place where we can work in as safe and healthy of an environment as possible. This has been Coping with COVID a series produced by the American Law Institute and the Bolch Judicial Institute at Duke Law School. I’m David Levi, thanks for joining us.