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When the essential become infected or otherwise injured, what rights do they have?

by: Anthony Hirschberger

Effective 8:00 p.m. on March 22nd, 2020, Governor Andrew Cuomo has ordered all “non-essential” business owners to effectively close their business and ask all workers to stay home to prevent the spread of the COVID-19 coronavirus.

On the list of “essential” workers who must continue to show up at work and bravely protect New Yorkers are members of the NYPD (cops) and FDNY (firemen). Not only are these brave individuals continuing to put themselves at risk for all of the normal dangers they face in normal times, but they are also putting themselves and their loved ones at risk of contracting the serious and potentially deadly coronavirus.

Luckily, the Legislature enacted special statutory causes of action for firefighters and police officers:

  • General Municipal Law § 205-a for firefighters
  • General Municipal Law § 205-e for police officers

Unlike the common law cause of action, recovery under G.M.L §§ 205-a and 205-e is neither subject to nor circumscribed by the Firefighter’s Rule. In fact, comparative negligence is not a defense in such action. And, to recover, an injured worker must only show a reasonable connection between a violation of the law and an injury. This is a significantly relaxed standard from regular lawsuits that require the plaintiff to show that a violation was a “substantial factor” in causing the injuries claimed.

What does this mean in the context of the novel coronavirus? The law requires that there must be a “well-developed body of law” that has been violated and that the violation has a reasonable relationship to the injury. One such bday of law that has been recognized under the Municipal Laws cited above is OSHA.

Under OSHA, healthcare employers need to use a combination of controls to protect workers and help reduce the transmission of the seasonal flu virus, including:

  • Promoting, administering and making readily accessible the annual flu vaccine to all workers
  • Encouraging sick workers to stay at home
  • Emphasizing hand hygiene and cough etiquette
  • Using airborne infection isolation rooms
  • Ensuring proper functioning of the heating, ventilation, and air conditioning (HVAC) system in patient rooms, procedure rooms, and examination rooms
  • Limiting the transport of infectious patients throughout the healthcare facility
  • Limiting the number of healthcare staff who come in contact with flu patients
  • Providing proper personal protective equipment (PPE) (gloves, gowns, surgical masks, respirators) to healthcare staff and ensuring that it is used and discarded correctly.

As has been well documented by now, healthcare employees are being asked to work without proper PPE, and some are being asked to work after re-using PPE, which is an unsafe practice. If a firefighter or police officer comes into contact with healthcare workers who were not given adequate PPE, among dozens of other possible violations, and contracts the coronavirus, the injured worker may have a lawsuit against the employer of that health care worker. This will even apply if the employer is the City of New York or one of its numerous departments and agencies.

This is a fast-moving and unknown body of law, and we encourage any “essential” worker who contracts the coronavirus to contact our law firm for an immediate consultation. Furthermore, we’d also like to remind our “essential” workers that even if they do not contract the coronavirus but are injured in some other way, they should still contact us for an immediate consultation.

Hach & Rose, LLP is set up to work remotely for all of your needs while this new crisis unfolds.


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