Staying safe: Legal issues of an ‘essential’ industry

COVID-19-related lawsuits have already begun

Many cannabis companies have been designated “essential” businesses amid the coronavirus pandemic by state and local governments across the United States. Those that choose to operate, however, are exposed to increased liability, particularly regarding employees who could transmit or contract the virus in the workplace.

COVID-19-related lawsuits by employees have already begun. Take, for example, the wrongful death lawsuit brought against Walmart by its deceased employee’s family members. The family members claim that the employee, who died from COVID-19, contracted the virus at work because Walmart failed to follow safety measures recommended by the Centers for Disease Control and Prevention and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), including: notifying employees when a colleague had symptoms consistent with COVID-19; providing workers with personal protective equipment (PPE) such as masks and gloves; cleaning and sterilizing the store; and sending home workers who were symptomatic and/or exposed to the virus.

Or consider the emergency applications filed against Lyft and Uber by drivers claiming the companies’ failure to provide them paid sick leave is unlawful. The drivers argue they need paid sick leave immediately because without it they must continue, even working with symptoms consistent with the virus, thus putting themselves and customers at risk, since Lyft and Uber only compensate drivers with formal diagnoses of the virus.

COVID-19-related lawsuits against cannabis employers are likely to follow, with employees claiming to have contracted the virus at work.

Workplace safety is paramount in operating a business during this precarious time, requiring compliance with a variety of updated laws and policies. Fortunately for cannabis companies, navigating a hodgepodge of rapidly evolving laws is in their DNA. Cannabis operators already comply with stringent product-handling, sanitizing, security and laboratory testing requirements, all of which vary by state and locality.

 

Workplace Safety Guidelines

OSHA provides federal guidelines/standards for workplace safety applicable to federal employees. Cannabis employers should incorporate these standards/guidelines into their workplace safety policies, paying close attention to OSHA’s COVID-19 information page. These guidelines emphasize basic infection prevention measures and provide additional safety controls including, but not limited to: (a) engineering controls which may include, for example, installing high efficiency air filters; and (b) administrative controls such as creating a staggered workforce to reduce the number of employees in a facility at any given time or implementing virtual communications and/or telework whenever feasible.

Cannabis employers should review the OSHA-approved workplace safety plans that are applicable to private sector employees in 22 states, including California, Nevada, Oregon and Washington. These state plans may provide standards/guidelines supplemental to those from OSHA.

Cannabis employers should also adopt CDC guidelines, many of which are incorporated into OSHA guidelines. In particular, review the “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19),” which, it should be noted, is legally binding upon California cannabis licensees. The guidance recommends, among other things: (a) insisting employees who have been exposed to COVID-19, or have symptoms, stay home until cleared to return; and (b) educating employees about measures to reduce spread of the virus.

 

Infectious Disease Plan

Develop an infectious disease plan to guide safety measures. Incorporate guidance from OSHA, CDC and other applicable health agencies. Address the levels of risk posed by your worksite and your employees’ job tasks (cannabis operations generally constitute low or medium risk levels according to OSHA guidelines). Develop and incorporate contingency plans for a serious outbreak, including how to handle staff shortages and badging requirements in states where dispensary workers cannot be easily moved from one dispensary location to another. Appoint a coordinator to oversee and enforce the plan.

 

Infection Prevention

Minimize the contact employees have with one another and with customers by implementing social distancing within facilities, curbside pick-up and/or home deliveries, if permissible in your state. Safe handling of cash is crucial in this industry. Consider collecting cash in a basket and sanitizing it before handling. Notify workers when colleagues have COVID-19 (in accordance with confidentiality requirements under the Americans with Disabilities Act) so that they may properly protect themselves and their families.

 

Paid Sick Leave

Cannabis companies employing fewer than 500 people are subject to the Families First Coronavirus Response Act. This is the federal law requiring companies to provide workers two weeks of paid sick leave at full pay if employees are unable to work because they are quarantined (because of a government order or as advised by a doctor) and/or are experiencing COVID-19 symptoms and seeking a medical diagnosis.

Companies with fewer than 50 employees may be exempt from some (but not all) of the act’s requirements, but even exempt cannabis employers should provide minimal sick/family leave support in order to efficiently contain the virus.

 

Fatima V. Afia is an associate at Hiller, PC (www.hillerpc.com), a boutique litigation firm with a track record for success in various practice areas including cannabis law, land use and zoning, disability insurance law and business and corporate law.

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