MY CO-EMPLOYEE INTENTIONALLY COUGHED ON ME AT WORK. CAN I SUE HIM OR MY EMPLOYER?

photo of a man wearing a mask during pandemic at work Re-entering the work force after weeks turning into months in quarantine, there is the rising potential for new forms of harassment in the workplace. One such form is the intentional spreading of germs by co-employees. It may be that people have become so estranged from decorum and boundaries after sheltering in place in close proximity with friends, roommates, or family, or it may be the case that cabin fever has left some people a little crazed. In either event, what can be done if a co-employee intentionally coughs on you at work?

To start, it is the responsibility of employers to ensure the safety of their job sites. In doing this, employers must follow the guidelines set out by their state and local governments. Employees should be pre-screened before coming to work, and upon entry to the workplace, temperatures should be taken to prohibit those with fevers and symptoms of COVID-19 from entering the workplace. Employees should maintain a distance of six feet from one another as much as possible while working in order to avoid the potential for spreading germs. Further, if an employer is informed of an employee’s contraction or diagnosis of COVID-19, it is the duty of the employer not to inform the rest of his employees that there has been a diagnosis, but to warn of the potential for exposure. Because of HIPPA guidelines, an employer cannot reveal that there has been a diagnosis or the identity of the potential source of future spread.[1]

In this vein, employers are required by the OSHA General Duty Clause to provide employees with a workplace free from recognized hazards, such as exposure to COVID-19. This means employers are obligated to provide the means by which to prevent such exposure. While there is no clear standard across the board for the method of prevention, it is generally accepted that employers should provide protection that is proportional to the type of work performed, i.e., healthcare providers require greater levels of protection as compared to those working the retail sector. [2] The common consensus, however, is that all workers should be wearing face masks to cover noses and mouths because the virus mainly spreads from person to person via the respiratory system, in addition to the virus being transmitted by high-contact surfaces.[3] It is common during this time of heightened caution that employees feel their employers could be doing more to prevent the spread of infectious diseases. But if an employer is following every guideline of the CDC and OSHA to the letter, the employer is fully compliant and not in the wrong.[4]

You may be wondering what to do if you believe you contracted the virus while on the worksite. There is the possibility you have a workers’ compensation claim for being exposed to the contamination. However, the biggest obstacle you will face is how you came into contact with the contamination and the point in time when you contracted COVID-19. Proving this to any degree of certainty tough because the coronavirus is a novel disease of which much information remains unknown. The good news is that, as an employee, you do not have to prove your employer did anything wrong for you to recover under workers’ compensation. Every guideline could be in place and every employee in a face mask, but you can still recover on your claim as long as the workplace is the source of exposure.[5] Any illness requiring hospitalization or continuing treatment for three or more days, according to the Family and Medical Leave Act, may qualify as a serious health condition which provides between twelve and twenty six weeks of leave.[6]

Knowledge and proactiveness is the best form of pretention, but you should know your options in the case your exposure is not of your own doing.  Please wear a mask, wash your hands frequently and practice social distancing. Remember, there is the possibility that you have already contracted COVID-19 and are an asymptomatic carrier who can spread the virus despite not showing symptoms. Always conduct yourself as if you have COVID-19 so that you do not infect others.

If you are hurt on the job due to unsafe working conditions, seek legal counsel, as you may be entitled to workers’ compensation or other benefits. As we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers.  If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-930-6900.

 

 

[1]https://edis.ifas.ufl.edu/fs351#:~:text=%2D%20Employers%20need%20to%20follow,department%20for%20additional%20guidance..

[2] https://www.kiplinger.com/article/business/T012-C032-S014-covid-19-at-work-your-legal-rights.html.

[3] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.

[4] https://www.kiplinger.com/article/business/T012-C032-S014-covid-19-at-work-your-legal-rights.html.

[5] https://hrdailyadvisor.blr.com/2009/09/18/what-to-do-when-contagious-illnesses-come-to-work/.

[6] https://hr.blr.com/HR-topics/Benefits-Leave/FMLA-Leave-of-Absence.


Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2019, Bernard was named a Super Lawyer for the 7th year in a row.

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