May 8, 2020
Authored by: Susan Brice and Lily Kurland
A federal court recently dismissed a suit brought by meat processing workers that asked the court to force the plant owner to comply with workplace safety guidance issued by the Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) related to COVID-19.
Important Takeaways For Employers:
- This is one of the first court decisions involving workplace safety and COVID-19. It suggests the courts may rely on the doctrine of primary jurisdiction and similar doctrines to avoid deciding cases involving COVID-19 safety issues and instead shift the decision-making authority to the agencies that issue or enforce the workplace and public health and safety laws.
- The defendants successfully argued that the court should dismiss the Complaint on the doctrine of primary jurisdiction. Based on this doctrine, the court decided that OSHA, not the court, should decide the matter.
- The court declined to address the issue in part because its intervention “could easily lead to inconsistent regulation of businesses in the same industry. And under these circumstances, where the guidelines are rapidly evolving, maintaining a uniform source for guidance and enforcement is crucial.”
- The court rejected plaintiffs’ concerns about delay, noting that Section 662 of OSHA would:
(1) permit the Secretary of Labor to petition the court “to restrain any [dangerous] conditions or practices in any place of employment . . . which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [the Act]” and
(2) allow a worker to file a writ of mandamus to seek injunctive relief from a court if the Secretary “arbitrarily or capriciously fails to seek relief.”
- The case also provides a roadmap for defendants in workplace safety cases generally. In addition to the doctrine of primary jurisdiction, the defendants also filed motions under the doctrines of preemption and abstention, but these were not considered by the court due to the outcome on primary jurisdiction.
- Notably, because the plaintiffs sought injunctive relief rather than damages, Missouri’s worker’s compensation bar, which generally prohibits employees from seeking relief for workplace injuries from any source other than worker’s compensation law, did not apply. Given that most states’ worker’s compensation laws include such a bar, they are very important when considering employers’ potential liability for COVID-19 exposure. However, whether COVID-19 qualifies for coverage under worker’s compensation laws and if so, how application of a bar to relief will apply, are open questions and will vary by state. For example:
- In Missouri, the state’s worker’s compensation law applies only to cases involving “personal injury or death” of an employee by accident or occupational disease “arising out of and in the course of the employee’s employment.” Mo. Rev. Stat. §287.120. However, ordinary diseases of life, to which the general public is exposed outside of employment, are not compensable under Missouri’s law, except in limited circumstances. Missouri courts have not yet definitively answered whether COVID-19 is an “ordinary disease of life.”
- Moreover, under Missouri law, “[i]n order to show a recognizable link between the disease and the job, a claimant must produce evidence ‘establishing a causal connection between the conditions of employment and the occupational disease.’” Cheney v. City of Gladstone, 576 S.W.3d 308, 315 (Mo. Ct. App. 2019). Because COVID-19 is easily transferred, it can be difficult to prove from where an employee got COVID-19. Except in limited cases, the burden of proving this causal connection generally rests with plaintiffs.
- Finally, even if worker’s compensation laws apply to COVID-19, their bars are generally inapplicable to intentional torts. In many cases, intentional conduct occurs when an actor intends the consequences of his or her actions or either desires to cause those particular consequences or believes that those consequences are substantially certain to result. Restatement Second, Torts § 8A. In Missouri, an intentional tort occurs in the worker’s compensation context when the employer actually intended injury or acted with knowledge that injury was substantially certain to result. See Speck v Union Electric Co., 741 S.W.2d 280 (Mo. App. 1987).
Further Discussion of the Case
The court described primary jurisdiction as “a common-law doctrine that is utilized to coordinate judicial and administrative decision making. . . . The doctrine allows a district court to refer a matter to the appropriate administrative agency for ruling in the first instance, even when the matter is initially cognizable by the district court.” Order at p., 14 (citation omitted). While the defense is “to be invoked sparingly, as it often results in added expense and delay,” the court found the case squarely fell within the doctrine. Order at p., 15.
In deciding whether to apply the doctrine, the Court held that it must focus on two questions: (1) whether the issues raised in the case have been placed within the special competence of an administrative body and (2) whether the court’s disposition of the case could lead to inconsistent regulation of businesses in the same industry. Order at p., 15.
In answering the first question, the court reasoned that the plaintiffs’ claims – that the Plant was not abiding by the Guidance and thus was a nuisance and unreasonably unsafe workplace – would be determined “by whether the Plant is complying with the Joint Guidance [CDC and OSHA].” Order at p., 15. The Court held this OSHA was “better positioned to make” this decision. Order at pp., 15-16. On the second question, the Court held that “only deference to OSHA/USDA [due to Executive Order] will ensure uniform national enforcement of the Joint Guidance.” Order at p., 16. “Thus, any determination by this Court whether the Plant is complying with the Joint Guidance could easily lead to inconsistent regulation of businesses in the same industry. And under these circumstances, where the guidelines are rapidly evolving, maintaining a uniform source for guidance and enforcement is crucial.” Order at p., 16.
As to the important issue of delay, the Court held that plaintiffs could rely on OSHA’s statutory framework. “Section 662(a) of the Occupational Safety and Health Act (“the Act”), 29 U.S.C. §§ 651 et seq., permits the Secretary of Labor to petition the court ‘to restrain any [dangerous] conditions or practices in any place of employment . . . which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [the Act].’” Order at p., 16.
The Court further explained that upon the filing of such petition, “the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding.” Order at pp., 16-17. If the Secretary “arbitrarily or capriciously fails to seek relief,” a worker can file a writ of mandamus to compel the Secretary to seek such an order. Order at p., 17.
In short, the court punted the case to the regulatory authorities, which will likely significantly delay any decision or relief.