Can I Sue My Employer for Not Providing Personal Protective Equipment (PPE)?

In response to the coronavirus pandemic, public health officials have advised people to use PPE in nearly every area of life to try to prevent the spread of the virus. That includes in the workplace.

At the onset of the pandemic, healthcare workers, first responders, and other frontline workers faced the greatest risk of infection. But as states begin to reopen, workers in many other types of jobs could face significant risk as well, from retail workers to teachers to transportation workers. In virtually every workplace in the country, employees will require some form of PPE, especially gloves and face masks.

What are an employee's rights when an employer fails—or refuses—to provide necessary PPE? Federal law imposes duties on employers to maintain safe workplaces, but doesn't allow workers to file private causes of action. State workers' compensation laws and common law claims might offer some relief for workers who are denied necessary PPE.

The Occupational Safety and Health Act

The Occupational Safety and Health (OSH) Act is the main federal statute dealing with workplace safety. OSHA, the Occupational Safety and Health Administration, is the federal agency that enforces workplace safety regulations. While workers cannot file a lawsuit for damages under the OSH Act, OSHA's regulations and guidelines are useful in determining what safety equipment and safety measures employers should provide for their employees.

The General Duties Clause

Section 5(a)(1) of the OSH Act requires employers to provide a workplace that is "free from recognized hazards" that could "cause death or serious physical harm" to workers. OSHA offers general information on both PPE and COVID-19, and it published a document in response to the pandemic that sets forth guidelines for creating and maintaining safe workplaces. In addition to recommendations regarding PPE, the document describes "engineering, administrative, and work practice controls" that employers may use to protect workers.

Examples of administrative controls include:

• Allowing remote working and "virtual communications" whenever possible
• Arranging shifts to minimize the total number of employees present in a workplace; and
• Ensuring that workers who are sick can remain at home.

Engineering controls might include:

• Maintaining physical barriers between employees; and
• Improving ventilation and air filtration in workspaces.

OSHA Standards

OSHA does not have a set of standards that specifically applies to an airborne pathogens like the coronavirus. The agency has addressed this, however, by identifying existing standards that could apply. These include the general PPE standards and, when applicable, specific standards for respiratory protection.

Whistleblower Protections

The OSH Act does not allow injured workers to file lawsuits against their employers. They can, however, file complaints with OSHA. Employers may not retaliate against an employee who files a report or cooperates with an OSHA investigation.

Workers' Compensation and COVID-19

Workers' compensation is a type of insurance that provides benefits to workers who are injured on the job. The benefits may include wage replacement and reimbursement of medical bills. Each state operates its own workers' compensation program, with funding typically provided by employers. Workers who contract COVID-19 because of an employer's failure to provide adequate (or any) PPE may be able to claim benefits from this program, but there are limits to what they can recover.

Exclusivity Rule

Workers' compensation programs generally pay benefits to employees who have an occupational disease or injury without requiring proof that the employer was at fault. The benefit for employers is that they usually can't be sued in court for workplace injuries or illnesses. This is known as the "exclusivity rule."

Each state recognizes exceptions to the exclusivity rule. While exceptions vary from one state to another, common elements include:

1. Third-Party Liability: If a worker's injury occurs on the job, but is primarily due to the negligence or intentional act of someone other than the employer, the worker may be able to pursue a lawsuit against the third party or, in some situations, the employer.
2. Fraudulent concealment: If an employer conceals a worker's injuries with fraudulent intent, and those injuries get worse, the worker can sue their employer for damages.
3. Lack of insurance: An employer must be covered by workers' compensation insurance for the exclusivity rule to apply.
4. Intentional acts: Workers' compensation does not cover on-the-job injuries caused by an employer's intentional or willful actions. Some states require that the employer must have actually intended to cause injury or illness for the exception to apply.

In the context of COVID-19 and PPE, the exclusivity rule might apply where exposure to the virus is a regular part of the job and the employer makes a good faith effort to comply with the relevant OSHA standards. But if an employer willfully ignores OSHA guidelines regarding PPE, or fails to act when employees are clearly becoming sick, then an exception might apply, allowing a worker to file suit for damages. Ultimately, the extent to which the exclusivity rule applies in the coronavirus context is still unclear, and will surely vary from state to state.

Negligence and Other Causes of Action

If an employee is able to demonstrate that an exception to the exclusivity rule applies, they can bring a lawsuit for personal injuries, and possibly other claims.

Negligence

The most likely cause of action for injuries caused by a lack of PPE would be negligence. A claim for negligence requires proof of four elements:

1. The employer owed a duty of care to the employee, such as an employer's "general duty" to provide a safe work environment under the OSH Act.
2. The employer breached this duty, such as by failing to provide PPE in accordance with OSHA guidelines.
3. The employer's breach was the cause of the employee's injury.
4. The employee's injuries are measurable in financial terms.

Proving causation (element #3) could be the most difficult part of a negligence claim. It requires evidence that had the employer provided the necessary PPE, the employee most likely would not have gotten sick.

Intentional Tort Claims

A cause of action for negligence does not require evidence that an employer intended to cause harm to an employee. Intentional torts like assault or battery, as the name implies, do require this kind of evidence. If an employee gets around the exclusionary rule by demonstrating an intentional act by their employer, this type of claim could be possible.

Wrongful Death

A wrongful death claim seeks to hold someone civilly liable for the death of another person. If a worker who was not provided with adequate PPE dies of COVID-19, their personal representative could file suit. Wrongful death has four elements:

1. An employee died.
2. Their death was due to the employer's negligence, as defined above, or an intentional act by the employer.
3. Surviving family members have suffered injuries that can be measured financially.
4. The personal representative is legally capable of filing suit.

Breach of Contract

Employees could file suit for breach of contract if their employment contract includes provisions about PPE. This is unlikely to apply to workers in areas that would not normally require PPE, such as grocery store clerks or delivery drivers. People who work in fields like healthcare or construction, on the other hand, might have these sorts of provisions in their contracts. Damages in a breach of contract suit could include both monetary relief for medical expenses and other costs, but also injunctive relief requiring an employer to provide PPE.

Contact an Attorney

Lawsuits for lack of workplace PPE are on the rise, although some will be barred by workers' compensation laws. Still, if you're not receiving the PPE you require to do your job safely⁠—or if you've contracted COVID-19 and think a lack of PPE was to blame⁠—you should contact a workers' compensation or employment attorney right away.