A Marlin Flop: What Happens When Employees, Not Employers, Call the Shots
Major League Baseball returned to Philadelphia this past weekend with the Philadelphia Phillies hosting the Miami Marlins. The rubber gloves were off, but the masks were on as the two teams went head-to-head before a stadium sparsely filled with cardboard cutout fans. Unfortunately, opening weekend of the Phillies' 2020 season was overshadowed by the news that eleven Miami Marlins players and two coaches had tested positive for COVID-19 - three of whom tested positive before Sunday's matchup.
Despite knowing multiple players had tested positive for COVID-19 ahead of this past Sunday's game against the Phillies, the Marlins players decided via group text messages that they would play. Marlins Manager Don Mattingly said infielder Miguel Rojas led the group text and confirmed the team's collective decision to play. Rojas said the Marlins "never considered opting out of the game." When asked what the Marlins did when the players were found to be positive, Major League Baseball Commissioner Rob Manfred indicated that the team did additional testing, symptom checks, contact tracing and quarantined several players who met the CDC guidelines testing.
The decision to play not only put the Marlins and Phillies players in harm's way, but it also risked the health of coaches, trainers, bus drivers, ushers, hotel staffers and many other personnel essential to the team operations. Most surprising was that the decision to play was driven by the players (i.e., the employees), not the owners, manager, coach or even Major League Baseball. Arguably, the employer, Major League Baseball, should have stepped in not only to protect its players and coaches but also the secondary and tertiary employees mentioned above.
We have all been told that individuals who enter a workspace or establishment must take personal responsibility to follow the CDC and DOH guidelines for handwashing, social distancing, mask-wearing and staying home if sick. Employers need to be vigilant as well to ensure the health and safety of their employees and risk exposing themselves to liability. The CDC posted a series of guidelines for employers to help minimize the risk of COVID-19 exposure, which encompass distancing measures, sanitation suggestions and reporting requirements, which in this case the Marlins did not follow.
If there is no mitigation effort by employers, the risk of workplace COVID-19 exposure, workers' compensation claims and other litigation increases exponentially. In addition, employers could potentially face higher policy premiums, staffing shortages and potential third party actions if they fail to protect their employees.
The potential trickle-down effects of the Marlins' poor decision-making made via player group text are numerous. The decision to play or not to play should have come from the employer, Major League Baseball, or at the very least the Marlins' front office. It is up to employers to take the lead when COVID-19 arises in a workplace setting to ensure all employees - primary, secondary or tertiary - are protected. The failure to do so here has left Major League Baseball and the Marlins exposed to claims from anyone who alleges they contracted the virus directly or indirectly from the Marlins moving ahead with the game as the risk to others was foreseeable and could have been avoided.