Anthrax Is Concern For Employers

June 21, 2002
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GRAND RAPIDS — Can an employer be held liable if an employee contracts anthrax from mail opened at work?

Only if the employer had prior knowledge that a worker would become infected and did nothing to stop the incident from happening. Or if an employer was shown to have failed to provide a reasonably safe workplace under federal or state law.

But an employee who does contract anthrax at work would be able to get some financial relief under Michigan’s worker’s disability compensation law at the employer’s expense, even if the infection was the result of a criminal or terrorist act, according to an attorney familiar with the situation.

“I think with this anthrax threat, assuming someone was exposed at work, there would be no question it would be treated as a worker’s comp situation,” said Terrence Groesser, a partner at Rhoades, McKee, Boer, Goodrich & Titta and a member of the firm’s employment group.

“If there was some question of whether it was at home or at work, then there might be some fact issues. But, still in theory, it would be covered,” he added.

State law makes it difficult for an employee to sue an employer for liability in a situation where a package containing anthrax powder made it through the company mailroom to the worker. Lawmakers tightened the liability law in July 1985 after a worker successfully sued the Dow Chemical Co. for exposing him to Agent Orange.
“The governor called the Legislature back for a one-day session to tighten up that loophole. The courts have been very strict about allowing any suit beyond worker’s comp for personal injury,” said Groesser.

In effect, about the only way an employee can successfully sue an employer in Michigan is if the employer had prior knowledge of the incident and its likely outcome.

“The employer has to know of and intend the harm that is done to the employee before there is relief beyond the worker’s compact. Could the employee go into court and sue the employer also? If he did, he would practically have to prove a criminal case against the employer — one of intention, that he would be harmed in the way he was harmed,” said Groesser.

Under state law, workman’s compensation is considered the employee’s “no-fault” alternative to suing an employer. Under it, dependants would likely receive benefits if an employee died after contracting anthrax at work. Children normally qualify as eligible dependants to receive death benefits, but some spouses may not.

If a spouse earns enough income on his or her own, he or she may not be eligible to receive death benefits. In a case like that, testing would be done and a determination of the spouse’s eligibility would be made.

“In all cases, worker’s comp covers medical expenses related to the injury or illness,” said Groesser. “There is also a burial benefit of $6,000. But if a person has no dependants, that may be all that gets paid.”

Under federal law, an employer could face some liability if it violated the Occupational Safety and Health Act, which mandates a safe workplace for employees. But the state version of that law is nearly identical.

“So the issue is, what kind of safety precautions would an employer take? Both the CDC (Center for Disease Control) and Kent County have published precautions that employers should take with their people on opening the mail. Those precautions include identifying suspicious mail,” said Mary Ann Cartwright, also a partner at Rhoades McKee and chair of the firm’s employment group.

In addition to the Center for Disease Control and the Kent County Health Department, the Michigan Department of Com-munity Health and the U.S. Postal Service also are sources for these guidelines, which are posted on their respective Web sites.

Cartwright suggested that employers publish the precautions and discuss the guidelines with employees, even more so if a firm doesn’t handle chemical substances. She added that doing that would go a long way toward putting the company in line with state and federal workplace regulations during the anthrax scare. Failure to take proper precautions could set up a firm to be hit with a fine if a worker contracted anthrax.

“I would suspect that if most employers know that these things are in print, they would look at it and would develop a policy,” said Cartwright. “What I would recommend for every employer faced with this issue is to either contact their law firm or secure the safety precautions, develop a policy and educate their employees, so they are safe when handling the mail.”  

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