The pandemic has led to a demand for personal protective equipment by workers who risk exposure to the virus at their jobs. As the economy and businesses continue to open, workers in a broad variety of jobs are asking for PPE from their employers to protect them from potentially contracting COVID-19.
Some employers refuse to provide PPE to their workers while others simply fail to do so. Employers are required to maintain their workplaces in reasonably safe conditions for their employees’ safety. However, employees whose employers fail to provide PPE generally do not have the right to file private causes of action against their employers on that basis. Workers might secure legal relief through state common law claims and workers’ compensation laws when they are denied the PPE they need at work. The attorneys at Swartz Swidler can help you to understand your legal options.
Duty to maintain safe workplaces under the Occupational Safety and Health Act
The OSH Act is the primary federal law governing workplace safety. This law and its regulations are enforced by the Occupational Safety and Health Administration. The OSH Act does not allow workers to file lawsuits to recover damages, but its rules are helpful for determining the types of equipment employers must provide to their employees.
Under the general duties clause of the OSH Act, employers must provide workplaces to employees that are free from known hazards that could result in serious injuries or deaths. In response to the pandemic, OSHA published guidelines for employers about what they should do to maintain safe workplaces. The guidelines recommend the provision of PPE and discuss various safety measures employers can use to protect their employees.
OSHA does not have standards that specifically address viruses like the coronavirus. However, the agency has identified existing standards that might apply, including the PPE standards and those regarding respiratory protection.
While employees cannot file a lawsuit against their employers for safety violations under the OSH Act, they can file complaints with OSHA. Employers are prohibited from retaliating against workers who file complaints with OSHA or cooperate with OSHA investigations.
Workers’ compensation insurance must be carried by employers in New Jersey and is designed to provide benefits to employees who are injured or sickened on the job. These benefits include the payment of medical costs and a portion of the employee’s wages if he or she is unable to temporarily or permanently return to work because of his or her injuries. If you are sickened with COVID-19 at work, you might be eligible for workers’ compensation benefits.
In general, employees may recover benefits through workers’ compensation when they contract an occupational disease or suffer workplace injuries without having to prove that their employers were at fault. In exchange for this benefit, employees may not sue their employers for workplace illnesses or injuries.
However, employees might still be able to file a lawsuit against a third party that intentionally or negligently caused their work injuries. They might also file a lawsuit against their employers when the employers fraudulently concealed their employees’ injuries, and the injuries worsened because of the concealment. Employers can also be sued if they did not carry workers’ compensation insurance as required by state law.
In some cases, a worker who contracts COVID-19 might be able to file a lawsuit against his or her employer if the employer willfully violates OSHA’s PPE guidelines or fails to act when multiple employees are falling ill. However, you will need to talk to an attorney at Swartz Swidler to learn whether an exception applies in your case.
Common law causes of action
If you can show that an exception applies in your case, you can file a lawsuit against your employer for your personal injuries that resulted from your employer’s actions or failures to act. The most common cause of action that might be available to you is a negligence claim for injuries you suffered because of your employer’s failure to provide PPE.
To prove that your employer was negligent, you will need to prove that your employer owed you a duty of care to provide a safe working environment. You will then have to show that your employer breached the duty of care, and the breach caused your injuries. Finally, you must show that you suffered actual measurable harm.
To prove that your employer was negligent, you will not have to present evidence that your employer intended to cause you harm. However, if your employer intentionally acted in such a way to cause you harm, you might be able to file an intentional tort claim.
If you are a surviving family member of someone who died after contracting COVID-19 at work when his or her employer refused to provide PPE, you might have a valid wrongful death claim. To prove a wrongful death claim, you will need to prove that your loved one was an employee who died. You will also need to show that the employer was negligent and caused your loved one’s death. Finally, you must have suffered financial harm as a result.
A final cause of action that might be available to you is a breach of contract claim. If your employment contract includes provisions that concern PPE, your employer’s refusal or failure to provide masks, gloves, and other appropriate PPE for COVID-19 might be grounds for a breach of contract lawsuit. However, this type of claim is unlikely to be available to workers who work in jobs that normally do not require PPE. However, if you work in a field like construction or health care, you might want to review your contract to see if it includes anything about PPE. In a breach of contract claim, you might recover damages for your medical bills and other expenses, and the court might issue an injunction ordering your employer to provide PPE to you and other employees.
Get help from our New Jersey employment law attorneys
If your employer has refused to provide PPE at work to protect you from the coronavirus, you should talk to the attorneys at Swartz Swidler about your options. Contact us today by calling (856) 685-7420 to schedule a free consultation.