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Labor Law in the Time of COVID-19 (NY)

April 17, 2020

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<p style="text-align: justify;">Will plaintiffs be able to pursue claims under the New York Labor Law if they contracted COVID-19 and developed serious complications after working at a construction job site?  Although it is highly likely the plaintiff’s bar will attempt to use Labor Law §200 or §241(6) to make out violations against owners and general contractors for these types of claims, it is unclear if these attempts will ultimately be successful.</p>
<p style="text-align: justify;">With regard to Labor Law §241(6), plaintiffs will likely cite violations of the following two Industrial Code provisions: §23-1.7(g), which requires employers to test “unventilated confined areas” for dangerous air contaminants prior to permitting workers to work in that area; or §12-1.4, which bans employers from permitting workers to work in a room “in which there exist dangerous air contaminants.”  However, we suspect, the majority of coronavirus Labor Law claims are likely to fall under Labor Law §200 or common law negligence claims, which would require plaintiffs to show that the owner or general contractor had notice of an unsafe condition.  It is arguable whether the New York State and New York City directives to avoid non-essential work due to the coronavirus would constitute “notice of an unsafe condition.”  Given the dearth of direct case law, we expect plaintiffs to turn to somewhat analogous case law involving employees infected with HIV or Swine Flu (<em>Wiener v. City of New York</em>, 939 N.Y.S.2d 745 (Sup. Ct. Qns. Cty. 2011)), or case law relating post 9/11 asbestos remediation work in New York City.  In one such case, the First Department addressed the two Industrial Code sections discussed above and held that, where §23-1.7 was inapplicable, §12-1.4 alone was not sufficiently specific to support a cause of action under Labor Law §241(6).  <em>See Kagen v. BFT One Liberty Plaza</em>, 62 A.D.3d 531 (1<sup>st</sup> Dep’t 2009).</p>
<p style="text-align: justify;">Thus, while it appears there are likely several arguments plaintiffs may attempt to raise in connection with the New York Labor Law, the ultimate success of these arguments may be limited, at least, for now.  However, as this likely will be a highly litigated area, we will continue to keep you updated as new case law emerges.</p>
<p style="text-align: justify;">Thanks to Shira Straus for her contribution to this post.  If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>

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