Agency Guidance May Not Be Enough: Keeping Workers Safe and Avoiding Employer Workplace Liability During the COVID-19 Pandemic

SAMUEL ESTREICHER, ELISABETH CAMPBELL

NYU law professor Samuel Estreicher and 2L Elisabeth H. Campbell describe the wide array of laws that will need to come into play to keep workers safe and avoid employer liability as workplaces consider reopening amid the COVID-19 pandemic, cautioning that compliance will not necessarily relieve employers of the risk of litigation and liability. Estreicher and Campbell discuss applicable recommendations, guidelines, and requirements set forth by such agencies as the U.S. Department of Labor, which is responsible for administering the federal Occupational Safety and Health Act (OSHA), the Centers for Disease Control and Prevention (CDC), and the Equal Opportunity Employment Commission (EEOC).

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Hicks v. Scott

Docket: 19-3410

Opinion Date: May 1, 2020

Judge: Gibbons

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Cincinnati officers Scott and Moore responded to a reported incident of menacing. Two people alleged that Quandavier had driven by their home that night and threatened to kill them and that Quandavier carried guns. Officer Loreaux identified a vehicle fitting the description. Officers Scott, Moore, Schneider, and Loreaux, standing where the vehicle was parked, heard a voice. Thinking that it was likely Quandavier, they knocked on the exterior door of the residence. It swung open. Three officers entered without a warrant or exigent circumstances. Loreaux remained outside. Neither Scott nor Moore recall announcing their presence or identifying themselves. Inside and upstairs, Scott knocked on a closed door. As it opened, Scott “saw the barrel of a rifle pointed at [her] face.” Moore and Schneider also saw Quandavier “nonchalantly” panning the rifle from left to right. Moore reached for its barrel as Scott fired her weapon. Moore did not instruct Quandavier to drop his rifle nor did Scott issue any commands before firing. Quandavier collapsed. The officers immediately radioed for paramedics. Before the officers applied handcuffs or provided first aid, they heard another voice and conducted a sweep. Quandavier died at the scene without receiving medical attention. In a suit under 42 U.S.C. 1983 for unlawful entry, excessive force, and deliberate indifference to a serious medical need, plus state claims, the district court granted the defendants summary judgment, citing qualified immunity. The Sixth Circuit reversed in part. The district court erred by granting qualified immunity to Scott, Moore, and Schneider on the unlawful entry claim. The court affirmed as to the excessive force, deliberate indifference, and state-law battery claims, and remanded for evaluation of municipal liability and wrongful death claims.