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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Spintz v. DFS

Docket: 378, 2019

Opinion Date: June 1, 2020

Judge: Montgomery-Reeves

Areas of Law: Constitutional Law, Government & Administrative Law, Juvenile Law

The Division of Family Services ("DFS") investigated allegations that the minor, Appellant Daniel Spintz, sexually assaulted his younger sister. After its investigation, DFS determined to substantiate and place Spintz on the Child Protection Registry. This appeal concerned whether DFS provided adequate notice of its intent to substantiate and place Spintz on the Child Protection Registry. On November 27, 2017, DFS sent Spintz and his guardian the Notice through certified and regular mail. The certified mail was not successfully delivered and returned to DFS. On April 10, 2018, after the conclusion of parallel delinquency proceedings, DFS filed the Petition with the Family Court. DFS also sent Spintz and his guardian the Petition with a copy of the Notice attached for reference. Spintz claimed he did not receive the November 2017 notice, and only became aware of the substantiation proceedings in April 2018 when he received the Notice attached to the Petition. The Family Court commissioner concluded the Notice sent with the Petition in April 2018 satisfied all statutory and constitutional notice requirements. On review, the Family Court affirmed the commissioner's order. After considering the parties’ arguments and the record on appeal, the Delaware Supreme Court found that Delaware law required DFS to send the Notice of Intent to Substantiate before DFS files the Petition for Substantiation. Therefore, DFS did not meet its notice requirement by sending the Notice with the already-filed Petition. That, however, did not change the ultimate outcome of this appeal because DFS introduced evidence showing that it sent the Notice by certified mail on November 27, 2017, long before it filed the Petition. DFS also sent the Notice by regular mail at that time; and it sent the Notice a second time on April 10, 2018, which Spintz received. Based on this evidence, the Supreme Court concluded that DFS provided adequate notice that satisfied statutory and constitutional requirements.