Michele Vanderyacht adjusts a sign on a blocked-off stationary bicycle at Epic Fitness on Thursday, July 30. Some equipment at the gym is closed to promote social distancing. (Amanda Loman/Salem Reporter)
Michele Vanderyacht, the general manager of Epic Fitness, insists that even before the pandemic she had the cleanest gym in town.
Now with increased sanitation requirements in place, she said the gym has doubled its efforts installing a plexiglass shield at the front desk and closing things down every day at noon for a deep clean.
“I’m as confident as I can be,” she said. But added, “There are unknowns. I can’t be here 24-7.”
As Oregon’s economy precariously reopens, businesses face concerns about potential lawsuits from employees or customers exposed to the virus on top of cleaning and social distancing requirements.
With no end in sight to the pandemic, businesses are asking for protection against legal liability. At least a dozen states have passed liability shields and Congressional Republicans have sought to insert similar protections in an upcoming pandemic relief package.
But Oregon lawmakers considered similar legislation in June during a special session but ended up taking no action. Lawmakers could revisit the issue during another special session in August.
Arthur Towers, political director for the Oregon Trial Lawyers Association, criticized the measure considered by Oregon lawmakers in June as too broad. He said that 99% of businesses want to do the right thing.
“But the liability shield protects the 1% that cuts corners,” said Towers.
He said that had the legislation passed, a company could avoid liability by pointing to policies around masks, social distancing and other requirements. Health care workers and others who interact with the public would’ve been left “out to dry” and had a harder time filing a lawsuit if exposed to the virus, he said.
Tom Hoffert, Salem Area Chamber of Commerce CEO, said businesses have been focused on complying with Covid regulations. But he said businesses could now face hefty legal costs after a guest carrying the virus walks through their doors. He said that because it’s so hard to trace where people contract the virus, churches and post offices could face similar issues.
“There is just a lot of concern and alarm about how a business could be shut down or face incredible legal fees and time spent on fighting a potential lawsuit,” he said.
Incentives for safety?
The legislation considered in Oregon would have shielded employers from liability if they complied with public health guidance. It would not have exempted employers for “gross negligence or reckless, wanton or intentional misconduct.” A workgroup is currently drafting a new proposal that could be approved in another special session that’ll be held in August.
Towers, writing in a letter to the workgroup, raised questions about how the law would determine if a company is in compliance not. He also said that retailers and restaurants are already protected because customers would have to prove that they were infected at a specific business.
There have already been Covid-related lawsuits filed in Oregon. In May, A nursing home in Portland that closed after having the state’s worst outbreak faces a $2.4 million lawsuit from the family of a man who died there.
Locally, Amazon was sued in May by Enesha Yurchak, a medical technician who worked at the company’s Salem warehouse. Her lawsuit alleges that the company put its workers at risk of contracting the virus and retaliated against her when she spoke up.
“Immunity takes away the principal incentive for employers to maintain safe workplaces,” said Christina Stephenson, Yurchak’s lawyer, in an email.
Both Stephenson and Towers said that there should instead be more protection for workers blowing the whistle on unsafe working environments.
But Rep. Raquel Moore-Green, a Salem Republican involved with the business community, said that the shield won’t protect bad actors and that there are mechanisms in workplaces to protect workers. For instance, the Oregon Occupational Safety and Health Administration has received a record number of complaints during the pandemic.(However, as of June, just a few resulted in penalties.)
She pointed out that the shield provided by the legislation would be temporary. She added that businesses have incentives to follow regulations.
“In order to keep a customer base you need to have a certain amount of trust,” she said. “And you display that trust by the precautions that you take.”
She said that she would like to expand liability protections to nonprofits and schools.
Lori Sattenspiel, director of legislative services for the Oregon School Boards Association, said they want Oregon legislators to temporarily limit liability for school districts if employees or students fall ill after in-person classes.
She said an ideal policy would protect districts making a good faith effort to follow health guidelines. Sattenspiel said school district liability insurance doesn’t typically cover communicable diseases, and districts can’t buy policies now because no companies are offering such coverage.
“Districts are not willing to put the risk out there to devastate the budget for a lawsuit,” she said.
She said the legislation should make worker’s compensation the mechanism to cover workers who contract Covid while on the job.
SAIF, the nonprofit that provides worker’s compensation insurance for most Oregon employers, treats Covid as an injury, not a disease, said company spokeswoman Lauren Casler in an email.
“For workers who come into contact with an infected customer or patient at work, SAIF generally accepts the claim and pays benefits,” she said.
SAIF has approved 87% of Covid-related claims, according to a letter the company sent to a state committee.
But for workers with no known work or off-work exposure to someone sick, SAIF will require additional information and even a medical opinion, she said.
SAIF covers most Oregon employers. But other insurers and self-insuring employers have paid out Covid-related claims at lower rates, according to data submitted to a state committee. As of June 24, there have been 455 claims, the data shows. Of those, 326 have been approved.
Keep cleaning
Salem Health, the largest healthcare provider for the Salem area, said in an email that the legislation would have been helpful. But it added that it hasn’t changed its policies or procedures because they “are always geared to keep patients safe because it is a core part of our mission.”
Vanderyacht, of Epic Fitness, said that she’ll continue to follow the state guidelines, which continue to be updated. In July, state Covid orders were updated to now require gym customers to use face coverings even while exercising. Vanderyacht said she’s ordered face shields.
She’ll keep cleaning and keep worrying.
“It’s scary,” she said. “It really is.”
Bill Porter, of Salem, wears a face shield while working out at Epic Fitness on Thursday, July 30. (Amanda Loman/Salem Reporter)
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Contact reporter Jake Thomas at 503-575-1251 or [email protected] or @jakethomas2009.
CORRECTION: An earlier version of this article misspelled Tom Hoffert’s name.
