Businesses planning for COVID-19-related reopenings must deal with numerous employee and workplace risk factors, as well as regulatory guidance that seems to evolve on a weekly, if not daily, basis. The stakes are higher than ever, and employers have no choice but to get it right the first time.
Here are some ways to identify and protect the at-risk worker, as well as the general public and your own organization, while staying within legal and regulatory guidelines.
How It Can Cost You
The potential sources of liability are many. You can be sued by third parties who claim you caused their illness by exposing them to hazardous conditions. Employment attorneys are on the lookout for class action opportunities based on gross negligence.
Inconsistencies in providing workplace accommodations, disparate impacts associated with layoffs and cutbacks, failure to pay nonexempt employees for all remote work time, privacy violations associated with releases of personal medical information, and retaliation are all viable grounds for liability.
In many instances, an employee with a COVID-19 infection is going to be eligible for workers’ compensation. Even in the absence of proof of occupational exposure, there are a growing number of state-specific legal presumptions that, for workers in certain categories, COVID-19 arises from occupational exposure. Excepting only the small employer, the costs of these claims will be borne, one way or another, by the employer rather than the insurer.
What You Can Do
Until government agencies change their guidance, the following employer practices are permissible, provided they are appropriately administered:
- Inquiring about symptoms of COVID-19
- Measuring body temperature
- Sending infected workers home and requiring medical documentation before they return
- Requiring protective gear
- Contact tracing
- Not paying people who won’t work, including those expressing unspecific fears or because of a high-risk family member
If you learn an employee has contracted a COVID-19-related illness, have a confidential discussion about how the person might have contracted the illness, and review any activity, whether work-related or not, that might have caused an exposure to others in the workplace.
A determination that the event was work-related is going to make the case eligible for Occupational Safety and Health Administration (OSHA) recordability and compel you to take aggressive action to remediate the work environment.
Keep in mind that the guidance set forth by government agencies is a de facto minimum standard. Meeting the guidance may not be sufficient, but failure could be deemed gross negligence.
Though we don’t know all the rules of the game, there’s no replacement for determining how such guidance applies to your operations or for taking any additional steps necessary to ensure stakeholder safety.
What You Can’t Do
You can’t use COVID-19 as justification to terminate an employee without legal cause, conduct overly broad medical tests, or share confidential personal information, such as the name of an infected person, beyond parties with a legal need to know. Additionally, you can’t require antibody testing as a condition of returning people to the workplace.
You also can’t mingle medical data within a personnel file, fail to provide reasonable accommodations (noting that people at high risk may need special protections), disregard good-faith concerns about specific workplace dangers, or interfere with protected activity such as whistleblowing.
Finally, you can’t withhold employment opportunities simply because somebody is regarded to be at elevated risk unless the person poses a direct threat to himself or herself.
What You Should Do
If there is an exposure incident, be aggressive in your response and communications while remaining careful about disclosing names or medical details. If you encounter a significant uncertainty or a high-stakes issue, get advice from legal counsel. And if in doubt, do what’s necessary to keep people safe. Remember that you can’t depend on employees being truthful about exposures or sickness.
A few other general recommendations:
- Have an accountable leader with authority to act. Enforce your program consistently.
- If you can’t prove in a year or 2 that you did it, you won’t be well prepared to defend yourself. So, keep records of everything.
- Require vendors to exercise similar diligence, but don’t prescribe how they should act.
- Consider whether your technologies are up to the task. Are they efficient and collaborative? Is access segregated to protect privacy? Do they provide insight?
By setting the proper framework and taking the proper actions, you are protecting everyone who is depending on you to get it right. Indeed, the best way to protect the vulnerable worker is to protect everyone your organization interacts with.
The Right Perspective
Finally, it’s time to adjust our thinking and look upon COVID-19 as one episode in the transforming obligations of an employer. Even when the coronavirus no longer dominates our daily lives, the legal and social consequences will persist. Therefore, the shifts in behavior and practices prompted by COVID-19 should be permanent, not temporary.
Gary Pearce is the Chief Risk Architect at Aclaimant, an insight-driven workflow solution for safety and risk management. In his role, Pearce is engaged in product development, customer consulting, and business development, as well as launching the Aclaimant Knowledge Network, an educational forum that provides world-class risk insight to Aclaimant customers.
Pearce recently retired from Kelly Services, where, as Chief Risk, Privacy, and Compliance Officer, he reported to the CEO and served as leader of the firm’s risk management functions, including the corporate Enterprise Risk Management program. Prior to joining Kelly Services, he was the Risk Financing Manager at Trinity Health and a vice president at Marsh.
Pearce is a past president of the RIMS Detroit Chapter. He holds the CPCU and ARM designations, and holds an MBA from the Ross School of Business at the University of Michigan.
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