You need to keep your business going for your own benefit as well as that of your workers and the local and larger economy.
But how can you do that in a way that protects you as well as your employees? There are early reports about potential lawsuits against employers whose employees accuse them of negligence or worse in requiring employees to work in unsafe environments. The coronavirus outbreak has changed how large gatherings are allowed and only some are considered essential businesses.
Wrongful Death Lawsuits Against Businesses
In Dallas, there are reports of a meat packing plant where a COVID outbreak occurred among employees. A wrongful death claim filed by the family of an employee who died of the virus alleges that sick employees were told they had to come into work or be fired, which allegedly led to the family member and others catching the virus.
Retail giant Walmart is also the subject of a wrongful death suit in Illinois, where two employees from the same location are reported to have died as a result of COVID. The suit claims Walmart was negligent in implementing and enforcing social distancing guidelines. And that Walmart failed to properly cleanse and sanitize the store, which is required to take extra precautions because the CDC has designated it as a high-volume retailer.
A wrongful death claim on behalf of a slaughterhouse employee in Pennsylvania alleges that the company not only failed to notify other employees that some coworkers had reported COVID symptoms but also failed to provide proper protective equipment while returning to work.
These stories demonstrate the extreme human toll the virus can take and the importance of implementing and enforcing appropriate policies for the protection of your workforce. Potential loss of life combined with legal liability and loss of employee and community trust are risks that a responsible employer should work diligently to avoid.
Business Policies to Return to Work
The first question an employer should ask is, do I really have responsibility for protecting my employees from contracting COVID?
The short answer is yes. Both ethically and legally, employers are required by the federal government to provide their employees with a safe worksite. The Occupational Safety and Health Act (OSHA) has a general duty clause that requires employers to provide their employees with a workplace free from recognized hazards that are likely to cause death or serious physical harm.
On January 31, the US Secretary of Health and Human Services declared a public health emergency. But the majority of the country had not yet.
On February 29, Washington, the first state to suffer a COVID19 outbreak resulting in death, declared a state of emergency. On 5 March, the state of California declared a state of emergency due to the COVID19 pandemic. On 11 March, the World Health Organization (WHO) declared it a pandemic. On March 13, President Trump issued a national emergency declaration.
Employers might argue that COVID19 was not a recognized hazard in their workplace at a certain date. While the rate of infection of COVID-19 varies across the country, we have now certainly reached a saturation point in terms of awareness of the dangers the virus can pose.
As businesses begin to invite their workforces back to the office under loosening governmental restrictions, they must carefully determine how to do that in a way that protects their employees and the business.
Having proper policies in place is essential for human resources. In addition to enacting proper policies for returning to work in a safe environment, assessing your company’s needs and establishing appropriate policies are all important to taking a safe approach to handling COVID in the workplace. Important policies include:
- Returning to Work Policy
- Work from Home Policy
- Extended Sick and Family Leave Policy
- Travel Policy
- Reimbursement Policy (for COVID-related work expenses)
Businesses that have return to work policies in place can reduce the risk to their workers. Prepared businesses will have in place a process for alerting employees if they have potentially been exposed in the workplace by a COVID-positive colleague. They also help by reducing the risk that a COVID-positive employee will be in the workplace.
Policies also help reduce the risk that your at-risk employees or employees caring for household members who are at-risk will be exposed if you have appropriate remote work and extended family and sick leave policies in place.
If your business potentially involves employees’ travel, or your employees may be traveling to at-risk areas on their personal time, it has become important for business policies to address this. Such policies help determine whether to allow certain work-related travel and to track and decide whether employees may need to isolate before coming back into the office after traveling.
Organizations that fail to establish and follow proper policies are at-risk of exposing their employees to an unsafe work environment or of exposing their business to discrimination claims based on uneven approaches to handling employees.
As employees deal with varying home and health situations, treating them differently without a policy in place to opens businesses up to legal risk based on discrimination claims. Such an approach also places an organization at risk by placing too much responsibility on supervisors to make judgment calls without any guidelines that are clearly established and based on guidance from government and health officials.
As your employees begin to return to your workplace, protect them, and protect your business. Good judgment based on careful policies can protect everyone’s health and safety and help your organization contribute to economic recovery by safely bringing people back to work at appropriate times and with appropriate guidelines in place.
Written by Marie Kulbeth
Marie Kulbeth is a Co-Founder and General Counsel of SixFifty, and the co-director of BYU LawX, a legal design lab dedicated to solving access to justice problems. She works to make the law straightforward for everyone, regardless of education level or income. Marie keeps her passion for equitable, accessible legal services at the forefront of her career. Her role as...
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