Legal issues around the health of employees are rising as businesses start reopening. Several states have passed laws expanding worker’s compensation to cover coronavirus, with several making the ability to file claims retroactive to March. States also created liability protections for some employers against employee lawsuits.
Liability protection is a major concern for employers. According to a recent survey conducted by the U.S. Chamber of Commerce, a majority of small business owners worry about the possibility of a lawsuit related to the coronavirus. HVAC contractors are in an especially challenging situation as they send employees into people’s home, risking legal claims from both the technicians and the homeowners.
Most of state laws only protect healthcare providers, but some cover a wider range of businesses, including HVAC contractors. Groups representing HVAC contractors, including the Air Conditioning Contractors of America (ACCA) and the Association of General Contractors (AGC), are lobbying Congress to pass national liability protection for all employers. Fifty-seven percent of AGC members who responded to a survey said they are counting on Congress to pass liability reforms to protect firms that are conforming to COVID-19 safety protocols.
Workers Compensation Expands to Include Coronavirus
Far more states have expanded worker’s compensation laws than have limited lawsuit liability. About half the states have passed or are considering laws creating rebuttal presumption. This means it’s assumed the worker got sick on the job and is eligible for worker’s compensation unless the employer proves otherwise. Not all claims are paid, as with any insurance, but the more claims an insurer has to pay, the higher the HVAC contractor’s rates will be going forward.
MEDICAL OR LEGAL: Legal issues abound for HVAC contractors, some brought on by their status as essential services.
As with the lawsuit liability laws, many of these workers’ comp changes only apply to certain classes of workers. In many states, however, those classifications include all essential workers. So the status HVAC contractors fought for a few months ago works both for and against them. ACCA CEO Barton James said the problem this presents comes from treating all essential workers the same as though they face the same risks. An HVAC technician repairing a hospital’s RTU and a nurse working inside the facility’s ICU are both essential to its operation, but the risk is far less for the technician working outdoors and alone.
James said legislators aren’t listening to the voice of employers in these situations. Christopher Feudo, an attorney with Foley Hoag, said politicians tend to respond to general public sentiment in times like this. Illinois provides a good example. Trade groups in that state won a court case to stop an executive action extending worker’s compensation, but the legislature quickly passed a bill creating the same rights.
“Most people want employers to have some possibility of being held liable if they don’t provide safe workplaces for their employees, because otherwise what incentive do employers have?” Feudo said.
Safety Precautions Require Buy-In from HVAC Contractors' Managers, Staff
Employers can offer rebuttal on the basis of several defenses, including showing that they followed all the current health guidelines during the period when an employee contracted the virus. James said his group’s members are taking all the steps they can to protect staff. Andrew Klaber, an attorney with Chartwell Law, said employers should go beyond the guidelines if possible. For HVAC contractors, this means providing all employees with the appropriate personal protection equipment and promoting options such as no-contact calls.
All the precautions only work if employees follow them. Frank Shuster, an attorney with Constangy Brooks, Smith & Prophete LLP, said HVAC contractors must get buy from all their managers concerning any safety protocols.
“Most employers are no better than their frontline managers,” Shuster said. “It’s critical for employers once they adopt these policies and procedures to make sure their managers are trained on them and to follow-up to make sure the managers are enforcing them.”
A challenge in the HVAC business comes from having many employees operating in the field without any direct supervision. Contractors need to take steps to ensure employees follow the rules. Klaber said technicians could fill out a checklist for the safety rules they followed at each job. Shuster suggests adding questions about safety protocols to a post-visit survey. Managers could also inspect a technician’s PPE usage via a video call.
Technicians should never let the homeowner talk them into disregarding safety protocols, Klaber said. Contractors need to train staff to deal with these situations, he said. HVAC contractors should create a script to read to clients that makes it clear technicians will follow all safety policies when at the house without exception.
Employees Sue, Claim Lack of Protective Equipment
There is no such thing as using too much caution. Employees at several businesses filed lawsuits in recent weeks claiming they failed to provide enough PPE. A group of employees in California went on strike and filed a public nuisance lawsuit against their employer, claiming he failed to take enough steps to stop the spread of coronavirus at their workplace and, as a result, created a threat to the public health.
Shuster said he expects more these public nuisance lawsuits. Worse than that would be a wrongful death lawsuit filed against an employer, such as the one filed against Tyson Foods. Any of these kind of cases quickly turn into multiple plaintiff actions, Shuster said, which prove expensive to defend against.
“If I didn’t like my facts, I wouldn’t want to be on the other side of it,” Shuster said.
Taking Temperatures, Asking for Waivers
Some states and localities are mandating that employers check their employees’ temperature on a regular basis. The Equal Employment Opportunity Commission allows exceptions to the American with Disability Act to allow employers to collect some personal medical data. However, it currently prohibits employers from requiring antibody test results from its employees.
Employers already receive various types of sensitive medical information from employees, Klaber said. They need to take the same steps to protect the privacy of the temperature readings. For example, if they are using an app, they must ensure its security. Like any data, this information becomes discoverable in a lawsuit. That can either help or hurt an HVAC contractor’s case, Klaber said.
Klaber said temperature readings only provide one measure of health, so the readings could go either way as a legal protection. At the same time, tracing the source of infection creates challenges, Klaber said, making consumer claims harder to prove. Much remains untested as either a basis for or a defense against lawsuits, for the most part.
One action growing in popularity with entities ranging from Little League to the Trump campaign is getting people to sign liability waivers. Feudo said HVAC contractors can get consumers to sign such waivers, but he’s unsure how much protection they really provide. Klaber said no actions fully guarantee against legal action at this point.
“It is almost impossible to say what is going to protect you,” Klaber said. “You want to limit exposure as much as possible.”
