Reducing your legal liability related to coronavirus in the workplace will be an ongoing task.
In the last six weeks, attorney Travis Vance estimates he’s advised between 300 and 400 businesses on their coronavirus response strategies.
“I’ve never seen anything like it,” says Vance, a Charlotte, North Carolina-based partner and the chair of the Covid-19 Taskforce at the labor and employment law firm Fisher & Phillips. On everyone’s minds: how to protect their businesses not only from the virus but also from any legal liabilities stemming from the pandemic. “Most employers are going to get a confirmed case sooner or later, so the question is how to respond,” he says.
That question is even more pressing as news broke Monday that Walmart has become the target of a wrongful death lawsuit after two of its employees at an Evergreen Park, Illinois, store died from coronavirus complications in late March. The suit alleges that management failed to sanitize the store properly, provide protective equipment to workers, and advise them of the risks of being infected. In a statement, Walmart said that it has boosted its sanitizing procedures and passed health inspections, offered masks and gloves to employees, and implemented social distancing measures inside stores. “We take this issue seriously and will respond with the court once we have been served with the complaint,” the company said in its statement.
For smaller businesses with fewer resources, staying on top of the fast-changing guidance from the Centers for Disease Control and Occupational Safety and Health Administration–not to mention local public health departments–can be overwhelming. It’s particularly challenging given that very little guidance about stopping the spread of the virus specifically relates to businesses, notes Alka Ramchandani-Raj, a Walnut Creek, Calif.-based employment lawyer at Littler Mendelson, and also a member of the law firm’s Covid-19 Taskforce. That puts employers in the position of making a best faith effort to follow the prescriptive advice for the public in a way that makes the most sense for their business.
The good news is, you may not be at as big a risk as you fear. If an employee contracts the virus, you’re likely covered by your workers’ compensation insurance. “Assuming there are a lot of workers compensation claims, insurance companies are likely to deny most of them because employees will have to prove they got the virus at work–and that’s going to be very difficult to prove” in a pandemic situation, Vance says.
Still, that doesn’t mean your business is free from liability. Employees can report workplace safety concerns, such as inadequate sanitation practices or lack of personal protective equipment to OSHA. The complaints can trigger an OSHA inspection and reckless conduct penalties of up to $134,000 per citation.
One thing business owners can do now is to prepare for when your workers eventually do return to the office.
While most employers already have coronavirus response plans in place, they haven’t yet thought about what comes next, Ramchandani-Raj says. “What you should be doing now is thinking and processing what work will look like after Covid-19.”
Even if no one has been in your office for weeks or months, your facilities will need to be sanitized, especially to give employees peace of mind about returning. You should continue to monitor employees for symptoms and look for places in the office to reinforce the use of hand sanitizer and good hand washing practices.
One thing you should consider not doing: taking employees’ temperatures. While doing so is legally permissible, Ramchandani-Raj says, most employers quickly discover it introduces too many logistical challenges, such as keeping the data private and ensuring proper social distancing measures. A better option is to encourage employees to take their own temperatures before they come into work.
A potentially bigger change to think about now has nothing to do with health and safety. Vance says he’s already fielding a flood of inquiries from companies about what work-from-home policies ought to look like post-pandemic.
“It’s going to be much harder as an employer to say ‘it’s essential that you’re in the office,'” Vance says. “The employee will say, ‘I just spent 12 weeks at home, so it’s not that essential.'” From a legal standpoint it will become more challenging to argue that you can’t accommodate certain employees, especially those protected by the American with Disabilities Act. So if you haven’t already, start thinking through your remote work policies and how they may change.
“We’re at a tipping point for a whole generation. The pandemic just proved we don’t need to be in the office every day,” Vance says. “If employers are not smart enough to recognize that, they will lose a significant competitive advantage when this is over.”
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