Face Masks and Lawsuits

New research from the CDC states the coronavirus (COVID-19) is able to travel up to 12 feet through the air. This pretty much annihilates the efficacy of the 6-feet social distancing rule, and it puts face masks back on the front line of virus defense.  The CDC is now recommending that all people wear a face mask while out in public. It is the newest rage in DIY projects for those with a sewing machine. However, many people are still not wearing them. Even worse, some employers have banned grocery store workers from wearing the masks until recently. This makes face mask lawsuits seem like a logical next step in this pandemic.

Why Did Employers Ban Face Masks?

The biggest error that employers made, especially at grocery stores, is preventing employees from wearing masks. Some grocery store workers have died from the infection, but not many have highlighted denial of face masks as a cause. Employers prevented cashiers and clerks from wearing masks in order to reduce panic by the public. They believed if customers saw employees wearing masks, they would become anxiety-ridden. The law was basically on their side.

Denying Face Masks Was Legal

It is traditionally legal for employers to deny grocery workers the right to wear a face mask. OSHA’s respiratory protection standard 1910.134 only requires that they provide face masks if it is necessary to protect the employee’s health. Since the World Health Organization was claiming people only needed face masks when treating coronavirus patients, it was legal for some healthcare professionals to be denied masks. The dangerousness of disallowing personal protective equipment during a pandemic is surprising. Technically, employers had the right. Therefore, a worker who was denied a face mask would not win in a personal injury lawsuit where employers denied the right to a face mask.

Faulty Face Masks

There is also a lot of news on the internet about faulty N-95 masks that did not actually meet the quality standards given to that type of a mask. In these instances, employers allowed and provided N-95 masks, but they didn’t work. This is not really the employer’s fault. Instead, it is the manufacturer’s fault in a product liability case. Technically, this could be a lawsuit where the courts award damages, but the faulty products are from different countries. It is doubtful that any courts could hold these companies accountable.

Are Employees Helpless?

Unfortunately, employees WERE helpless. Thankfully, wearing masks is now the recommendation. Employers are now allowing all workers to wear masks and even encouraging it. However, N-95 masks are the only masks that can filter viruses.  This reduces the idea of the purpose of face mask use. It is still true that face coverings limit some water droplets from travelling through the air. Therefore, face masks are now considered better than nothing.

Personal Injury Cases Often Judged by Precedent

Because personal cases are not criminal cases, they are not judged simply by whether or not a defendant broke the law. The courts may hold them liable for negligence or strict liability. Their judgments vary based on the specifics of the case. That is why the courts turn to case law, or precedent, in order to determine liability in a personal injury case. In other words, they rule based on how they’ve ruled in previous cases.

Workers Compensation Over Face Masks

When an employee suffers an injury due to an incorrect face mask or improper PPE, it is typically a workers’ compensation claim. These claims are typically filed for a known exposure and known or expected injuries. If the accident was caused by the fault of someone else (not the employer) a personal injury case may happen. This is called a third party case because the employer, employee, and other person are involved in the injury.

Frustration Over Face Masks and COVID-19

If you are working in an “essential” position and denied the use of a mask, you aren’t likely going to win a personal injury case against your employer. However, there are other ways for the courts to compensate you for your injuries if you were exposed to chemicals or other hazardous substances in the workplace. These include product liability and workers compensation cases. As far as being exposed to COVID-19, there may not be a lot that you can do. Thankfully, the CDC has changed the recommendation to all people wearing face masks. Most people are able to wear some face mask now whether it is handmade or N-95 rated.

The COVID-19 pandemic is a huge frustration for everyone. It is a tragedy for many people suffering due to the disease. It is easy to blame employers and other people in the midst of fear and panic. When it comes to face masks, the CDC was lagging in proper direction, but they’ve corrected their mistake.

What Can You Do About Face Masks During a Pandemic?

The truth is that everyone is frustrated about the pandemic. Face masks are expected to become the norm, rather than something to be feared. This means it will be rare for employers to limit employee’s access to face masks, but it could happen. What is more likely to happen is that people are not able to find masks. There is a shortage of N-95 masks, but people are able to make their own cloth masks with varying efficacy. In rare cases where employers may prohibit masks, OSHA does provide the right to refuse to do a task if certain situations are present. These situations are:

  • The employee requested protection and was denied, and…
  • The employee believed there was true danger
  • A reasonable person would agree with the danger
  • There isn’t time for regular enforcement

It is not clear what could happen from a refusal to do a task. However, there would be repercussions through OSHA protections. It helps to reduce frustration when you know there are some employee rights. However, refusing to do work could cost a person their job.

Probably Not a Lawsuit, But Maybe

Essentially, if you are thinking of suing your employer in a personal injury lawsuit for injuries sustained as a result of face mask inefficiencies, you aren’t likely to have a case unless you go through workers compensation or the manufacturer of the mask. The denial of face masks is not against the law, but it obviously could be very dangerous.

On the other hand, each case has its unique intricacies that make one person’s case a success and another’s a failure. While an employer may have denied employees masks prior to the CDC’s recommendation, the decision to do so following the recommendation changes things.

The intricacies of every face mask denial make it important for an employee to speak to a lawyer if they feel they might have a case. It is not very likely that you will have a case, but if someone else’s actions caused your face mask injuries, it is a possibility.

You need to speak to a lawyer with personal injury experience, and at Kirshner, Groff, and Diaz, we have decades of it. Call us today, and you’ll speak with a lawyer immediately who will offer you a no-obligation consultation about your potential case. We are sensitive to the needs of people suffering during this pandemic, and we will do what we can to help.

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