Businesses are slowly reopening, and as they do, Texans are wondering who is protected if someone gets sick?
In a virtual town hall held Friday, Lt. Gov. Dan Patrick said one of the top concerns he’s heard from Texas business owners is “getting customers back and not getting sued.”
Patrick and Texas House Speaker Dennis Bonnen are among Texas leaders urging Congress to enact a blanket immunity for businesses that are following Gov. Greg Abbott’s Phase 1 guidelines. Businesses are expected to ensure sanitizing, social distancing measures, and mask or personal protective equipment-wearing guidelines are being followed, as well as only allowing 25% capacity inside.
Texas leaders say Congress is the most effective route to get this protection, as the Texas Legislature doesn’t meet again until January, unless Abbott calls a special session.
But until an official statement is handed down, the questions still remain, from businesses and from patrons. If someone goes out to eat or to a store and contracts the virus, is the business liable? What if an employee gets sick because they’ve returned to work, or what if they live with someone who is in the high-risk category?
Figuring out what the legal implications are is tricky, experts say.
The Occupational Safety and Health Administration requires employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. To do that, OSHA instructs businesses to follow the Center for Disease Control and Prevention’s guidelines for protection.
But the catch is that OSHA is only enforcing the CDC guidelines and inspecting public businesses in hospitals. As a result, nationwide, more than 4,000 coronavirus-related complaints have been filed against employers that are failing to provide safe environments for their workers. OSHA has not issued any citations, but instead is directing employers to the CDC guidelines.
Employees who file a complaint and seek compensation for damages if they get sick at work would normally do it through worker’s compensation, but that relinquishes their right to sue. And in the case of a lawsuit, they would have to be able to prove they got sick while at work and not somewhere else, which is difficult in most circumstances.
“Texas is an extremely complicated state from a legal perspective on this issue,” said Richard Carlson, a lawyer and professor specializing in employment law at South Texas College of Law.
He said insurance companies haven’t qualified COVID-19 as an “ordinary disease,” yet, which could mean protection for businesses and difficult issues filing a claim for workers down the road.
“The truth is that insurance companies are very likely to deny claims if they can successfully argue that coronavirus qualifies as an “ordinary disease,” Carlson said. “That’s an open question in Texas. It was intended that employers and insurance companies should not have to pay any time an employee gets the flu – an “ordinary disease”, but this is a case where coronavirus is both an ordinary and an occupational disease. We’ll have to see how the courts interpret ordinary disease in these cases.”
But if coronavirus is deemed an “ordinary disease,” by the courts, Carlson said what could happen next for employers would be worse if they are not careful and cautious now about how they run their business.
“If the insurance companies win by arguing that COVID-19 is an ordinary disease, this means that employees can then sue their employers in tort if they can prove negligence and employers could then be liable in tort if the original claims are denied,” Carlson said.
How would you prove these claims?
Carlson says there will be a lot of evidence and statistics that should show a higher likelihood of getting the virus at work if you work in a high-risk place – such grocery stores, meatpacking plants, or a medical facility. But other businesses – like retail and restaurants or businesses that are highly customer-facing – really have to weigh the risks of how they conduct business, such as allowing customers to not wear a mask.
“This could be very dangerous for employers who assume they will be protected by workers compensation,” Carlson said. “Texas is the only state in the US that allows employers to opt-out of worker’s compensation completely, as well. There are many employers who do not have it at all, and this opens them up to extreme vulnerability in being sued in tort.”
Some Texas business owners have asked workers to sign waivers against liability, but Carlson says he is skeptical of those in this particular environment, because there are so many who he calls “nonsubscribers” to being strict about the guidelines.
For customers, the risk is equally as questionable, because they may observe restaurants and businesses interpreting Texas’ reopening guidelines differently.
At a Jiffy Lube in Houston, a sign on the door reads “Don’t have a mask? Ask for one. Don’t want a mask? Please wait outside.” Every employee inside or outside was wearing a mask.
But not all restaurants and coffeeshops are requiring customers to wear masks.
Customers who suspect they contracted the disease from a restaurant or other establishment could easily have a case, said Charles “Rocky” Rhodes, a South Texas College of Law professor who specializes in Constitutional law, federal and state civil procedure, federal courts and jurisdiction, and Texas constitutional law.
“A business patron or customer contracting the disease could assert a successful claim upon proof that the disease was acquired while at the business establishment and occurred because the business did not follow the appropriate standards of care,” Rhodes said. “Of course, there is a great irony in our political leaders such as Dan Patrick pushing for a full reopening of the economy because of supposedly minimal risks to us while at the same time seeking to immunize businesses from normal liability rules. If it’s safe to reopen, shouldn’t businesses owe us all the normal standards of care?”
There are lots of questions about the risks and liability for everyone. Right now, the answer is that it comes down to what choices Texans make.
Abbott is allowing select businesses to reopen, but only if they want to.
Employers have a choice to reopen, knowing the risks as cases continue to crest in Texas, and what they can do to minimize those liabilities. Customers can choose to go out to eat or go shopping while wearing a mask (or not), also knowing and weighing the risks. Workers who need the hours or are worried they’ll lose unemployment benefits or their job if they don’t return to work because they feel their employer isn’t protecting them or they live with a high-risk person may have a harder choice to make.
As a column published by the Texas Tribune noted, “responsibility and accountability have been known to make people do the right thing.”
