ID Ag Industry Call: COVID-19 Employer Liability and Challenges

Provided by Elizabeth Criner, FWAA Lobbyist

Federal Perspective-Ag. COVID-19 Employer Liability & Challenges, CJ Lake, LLC

  • The Senate has made it clear that any forthcoming relief package will have a liability protection provision.
  • Timing for an additional relief bill is expected after Labor Day.
  • Senate majority leader has been pushing for liability protections for those in the essential industry such as agriculture.
  • Negotiations are taking place on what the guidelines would be.
  • CDC has stated that 30-30% of people who have had COVID will never show symptoms- asymptomatic persons make it hard to tell where and how a person was infected.
  • OSHA has released guidance on what is work related and what is not. ISDA will post a link to their website later today.
  • To help determine what is work related, guidance takes into account how many employees are in a facility and interactions with infected persons outside or inside of work.
  • OSHA is more interested in identifying and tracking the virus- reporting is not an admission of guilt
  • CDC released guidance and a checklist specific to Ag. Safety
    • Recommendations include identifying a specific point person who will screen workers as they come in every morning- taking temps, asking about current health status, and informing workers if an employee has been infected

Questions

Q: Is legislation at the federal level being discussed to formalize protections?

A: On the senate side, the majority leader wants to see legislation offering blanket immunity. The senate judiciary chairman is drafting legislation that would be temporary in nature to coincide with emergency declarations.  

Q: Is this setting new precedence when we’ve never considered the flu as workplace injury?

A: This is why the senate is in favor of a limited timeframe.

Q: some employers offer housing as well, how should housing requirements and work requirements differentiate?

A: OSHA’s guidance addresses housing: making sinks available, hang sheets between beds, sleep in different directions when in bunk beds, etc.  

State Perspective-Ag. COVID-19 Employer Liability & Challenges, Ken McClure

  • Employers should assume the normal liability rules are at play. Idaho does not have particular protections in place for employers/landlords.
  • Normal liability rules say the employer is safe if you are doing what a reasonable person would consider safe, however in this current pandemic it is hard to tell what is reasonable
  • Typically, to assume liability a disease would have to be peculiar to the job  
  •  Pandemics are not usually assumed to be peculiar to work; OSHA may have different rules that say COVID can be deemed work related
  • Idaho has recommendations for re-opening businesses that can be found at rebound.idaho.gov.
    • If employers do everything on this list with 20/20 hindsight you may be judged by your peers as acting reasonably.
  • ILRC plans to introduce legislation for liability protection as soon as possible- whether that is during a special session or the next legislation session
  • Legislation would include: actions taken in good faith, action was not reckless or grossly negligent and occurred during a declared emergency and action related to or affected by declared emergency will be protected

Questions

Does the Ag. Community need to put pressure on the governor to call a special session for liability protection.

A: this is a problem that needs to be addressed at the state level-many other states, whether through special session or during regular session. Encourage liability protections to be included if a special session is called. Idaho special sessions are very short, a few days max.

Congressional and state updates

  • The Potato commission met briefly with Secretary Perdue during his North Idaho visit to discuss issues related to growers.