An Employer's Liability for Re-opening

As Ohio slowly starts to re-open, there remains little doubt that there will be an increase in the number of COVID-19 cases. Governor’s DeWine’s “Stay at Home” order has slowed the spread of the disease and allowed for the much desired flattening of the curve. But many believe that re-opening the economy is akin to cutting loose a parachute since it slowed the down the rate of fall, despite there being several thousand feet between a skydiver and terra firma.

So how does pertain to a business owner? It’s simple. More people are going to get sick. If you don’t believe that, watch what happens in Wisconsin now that the Wisconsin Supreme Court has invalidated the Governor’s stay at home order.

What happens when your employee gets sick with the coronavirus? What happens when that employee blames your business (and potentially you, individually) for getting him/her sick? While Worker’s Compensation will provide some risk protection, there is no guarantee that it will completely protect your business in this new day and age. It is entirely plausible that an employee could allege an intentional tort, saying that the employee became sick due to the substantial certainty that a certain consequence (COVID-19) would result. And while Congress makes noises about granting immunity to employers, nothing is set in concrete.

Best steps for employers to take right now? Follow the guidelines issued by Dr. Action and Governor DeWine. Follow the proactive steps you’ve seen others take. And document, document, document. Be prepared to show how your business took steps everyday — every hour — to protect its employees. This record will go a long way to establishing affirmative defenses which may very well save your company.