Historically workers have been denied adequate occupational exposure information, which has led to epidemics of disease/death and lawsuit, including workers' compensation claims. Exposure to the SARS-CoV-2 (Coronavirus) virus has been no exception.
Civil Actions for Concealment
In certain instances, employees have permitted civil actions against employers for the aggravation of occupational illnesses resulting from the employers' and company physicians' fraudulent concealment of medical disabilities disclosed during routine evaluations. There must be substantial harm to the worker to establish a claim for fraud, conspiracy to defraud, or intentional injury against the employer.
New Jersey Law
In the Millison claim, former employees at E.I. du Pont de Nemours & Company were examined during their employment by company physicians who knew the plaintiffs' exposure to asbestos and the resulting disease., appeal after remand Million v. E,I, du Pont de Nemours & Company, 226 N.J.Super. 572, 545 A.2d 213 (App.Div.1988), judgment aff'd 115 N.J. 252, 558 A.2d 461 (1989). 9.22 Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 9.22 (Thomson-Reuters 2021).
Right to Know Law
Although states have enacted legislation to prevent this type of concealment, such acuity continues unabated. California recently sued Amazon over concealment issues.
California Attorney General Rob Bonta announced a first-of-its-kind stipulated judgment requiring Amazon to end harmful labor practices that concealed COVID-19 case numbers from workers and to provide key information on workplace protections in line with California's "right-to-know" law, Assembly Bill 685 (AB 685) authored by Assembly Majority Leader Eloise Gómez Reyes. Throughout the pandemic, Amazon, as asserted in the complaint, failed to adequately notify warehouse workers and local health agencies of COVID-19 case numbers, often leaving them in the dark and unable to effectively track the spread of the virus. As part of the stipulated judgment, Amazon will modify its COVID-19 notifications to workers and local health agencies, submit to monitoring regarding its COVID-19 notifications, and pay $500,000 toward further enforcement of California's consumer protection laws.
"As our nation continues to battle the pandemic, it is absolutely critical that businesses do their part to protect workers now — and especially during this holiday season," said Attorney General Bonta. "That's why California law requires employers to notify workers of potential workplace exposures and to report outbreaks to local health agencies. Today's first-of-its-kind judgment will help ensure Amazon meets that requirement for its tens of thousands of warehouse workers across California. Bottom line: Californians have a right to know about potential exposures to the coronavirus to protect themselves, their families, and their communities. I'm grateful to Assembly Majority Leader Eloise Gómez Reyes for her leadership in spearheading AB 685 to stand up for California's essential workers during these unprecedented times. This judgment sends a clear message that businesses must comply with this important law. It helps protect us all."
"AB 685 is an example of how we can come together when a problem emerges to protect workers and hold employers accountable," said Assembly Majority Leader Eloise Gómez Reyes. "When this bill was being considered in the State Legislature and subsequent to it becoming law, we heard the stories from across this state of employees who were not informed of COVID-19 exposures and had to work in conditions where safety from this highly contagious disease was an afterthought. I am happy that our Attorney General, Rob Bonta, is demanding accountability and transparency from employers who have been unwilling to follow a straightforward law designed to keep workers and their families safe in these challenging times."
Enacted as part of the state's broad efforts to protect the public from the coronavirus, AB 685 requires employers to notify workers of COVID-19 cases at their worksites, provide employees with information on COVID-19-related benefits and protections, share their disinfection and safety plan, and report COVID-19 cases to local health agencies. AB 685, as enacted under California Labor Code section 6409.6, works to safeguard the right of California workers to make informed decisions on whether to take additional precautions — like seeking out testing, quarantining, or staying home — after being notified of potential workplace exposure. Fundamentally, the law aims to ensure that workers across the state have the tools they need to protect their health and, ultimately, the health of their communities.
Amazon Settlement
The judgment announced today, which is subject to court approval, arrives at a crucial time for workers as Amazon's peak holiday season approaches. Specifically, the judgment requires that Amazon update COVID-19 notification policies and take specific actions to help protect workers, including by:
- Issuing notifications to its tens of thousands of warehouse workers that identify, within one day, the exact number of new COVID-19 cases in their workplaces;
- Ending its practice of issuing notifications that inadequately inform workers of the company's disinfection and safety plan and employees' COVID-19-related rights;
- Notifying local health agencies of COVID-19 cases within 48 hours so they can intervene in potential workplace outbreaks;
- Submitting to monitoring by the Office of the Attorney General regarding its COVID-19 notifications; and
- Paying $500,000 towards enforcement of California's consumer protection laws.
A copy of the stipulated judgment, as filed with the court, is available here. A copy of the complaint is available here.
Federal Regulation Required
Flagrant concealment issues of workplace hazards by employers remain a severe issue. The diligent work of the California Attorney General to challenge the activities of the tech giant Amazon is an initial effort to battle concealment. Federal legislation is now appropriate to shield workers from unsafe and unhealthy work conditions, including infectious disease.
Recommended Citation: Gelman, Jon L., Amazon Settles with California Over Concealment of COVID Data From Warehouse Workers COVID-19, Workers' Compensation Blog (Nov. 17, 2021), https://workers-compensation.blogspot.com/2021/11/amazon-settles-with-california-over.html.
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters
