COVID Safety at Work: What to Do If Your Employer Doesn’t Enforce Protocols

If you are one of the many Americans who can’t work from home during the pandemic, you may be going to work with a heightened level of stress. You may have taken for granted or assumed that your employer would follow protocols and do what it takes to keep you safe at work, and with the virus still running rampant, you may be concerned that you’re not as protected as you should be.

You are not alone. Remember the Tyson Foods pork plant scandal in June of last year? Several workers in its Waterloo plant contracted COVID-19 and died. That lawsuit claimed that supervisors ignored any symptoms of the virus and enticed workers to show up with cash bonuses. 

An employee at a different Tyson Foods pork plant in Iowa, Michael Everhard, died that same month, three weeks after catching COVID-19. He was just 27 years old. His family sued Tyson for gross negligence last December, alleging that he was forced to work in the confined plant without any safety measures in place. Tyson’s testing found that nearly 600 workers in that plant had the virus as of June.  

Tyson is calling for the dismissal of the suit because it goes against new Iowa state legislation, signed in June by Gov. Kim Reynolds, called the COVID-19 Response and Back-to-Business Limited Liability Act.

The law raises the burden of proof on plaintiffs trying to prove they were harmfully exposed to the virus and is primarily designed to safeguard businesses and individuals from COVID-19-related suits.

To bring a valid suit, a plaintiff must meet one of three “actual injury” requirements: they were hospitalized or died directly from the virus, their employer acted with intent to harm them, or acted with actual malice, which means that there is an ill will or even hatred behind the intent to harm. Suits that don’t meet one of these requirements will be dismissed.

Furthermore, the law states that businesses and individuals cannot be held liable for civil damages related to COVID-19 if they can prove “substantial compliance” with regulations existing at the time of exposure. 

Tyson is also claiming protection under former President Trump’s emergency declaration that included meatpacking plants as “critical infrastructure” that must continue operations during the pandemic. That protection mandates that any litigation against these industries would undermine the declaration. The food giant says that Everhard’s family cannot prove he was exposed while at work, and their claims should instead go through regular workers’ compensation channels.

One Iowa federal judge ruled in favor of Everhard’s family but returned it to the district court, where it was initially filed before Tyson successfully moved it to federal court in February 2021. It will now be tried in the U.S. District Court because of its designation under Trump’s declaration.

Protocols Employers Should Follow to Keep Employees Safe

A Department of Health and Human Services letter to employers in Texas issued July 23, 2020, said that requiring a COVID-19 test before returning to work was not recommended, instead suggesting that workers showing symptoms should stay home for ten days and are fever-free. It does not mention PPE (personal protective gear) or barriers/partitions.

CDC guidelines, however, explicitly state that employers are responsible for providing a safe and healthy workplace. These guidelines include:

• Conduct regular health checks and actual testing of employees
• Actively encourage workers with symptoms to stay home for two weeks
• OSHA (Occupational Health and Safety Administration) requirements mandate that employers must figure out what PPE is required for their workplace, provide it to employees at no cost and train them how to use it
• Ensure all employees wear masks
• Take swift action to disinfect if someone does get the virus
• Exercise flexible social distancing, sick leave and telework policies
• Provide soap, water, tissues and no-touch trash cans 

The CDC even has guides geared toward specific industries to make it easier for employers to know what they need to do or don’t do. While these guidelines are currently not law, the Biden administration is considering changing that. 

Employers are responsible for staying compliant with the latest guidelines and laws, including providing free vaccinations to eligible workers. Managers are responsible for making sure social distancing and masks are in use; after all, employees have the right to file complaints with OSHA. Workers, especially those who may express disdain at wearing masks for personal or political reasons, should know those reasons are not legal grounds to object. As of now, all at-will employers have the right to require them. Unfortunately, not every employer is going to follow the rules. 

Related: Can Employers Require Workers to get COVID-19 Vaccine?

If you are concerned that your safety is at risk, including when a coworker refuses to wear a mask, OSHA laws can protect you. The laws can protect you from discrimination or retaliation if you raise concerns to your employer, government, or even on social media. If OSHA finds your complaint valid, it can inspect the workplace and force compliance. OSHA even allows you to refuse to go to work if your employer doesn’t address your concerns, you are taking that action in good faith, and you feel there isn’t enough time to file a complaint formally. Complete documentation of your evidence is essential.

At the Cochran Firm Texas, our mission is to ensure that all citizens receive adequate legal help. If you believe your health is in danger or your rights have been violated at work due to COVID-19-related negligence, we will fight for you. Please call us anytime at 1-800-THE-FIRM (1-800-843-3476), chat with us online or use our contact form to get started, or even if you just have questions. There’s no obligation.