Hundreds of COVID-19 related wrongful death lawsuits are being files against employers across the country. These lawsuits claim employers failed to prevent the spread of COVID-19 at work. The ability to show the timely development and implementation of COVID-19 safety policies is critical to protecting your workforce, and defending against lawsuits.
Recently, the Federal and State Legislatures began considering legislation aimed at shielding employers from liability, which could make these lawsuits more difficult to prove. Nevertheless, a prudent employer should take steps to reduce its liability by actively managing the COVID-19 related risks to its workplace on its own.
Employers have certainly been faced with ongoing changes and evolving recommendations regarding the workplace; however, the more transparent an employer is about its efforts to keep workers safe, the stronger its defenses will be to any subsequent lawsuit.
Here are some tips to help protect employees from illness that will also help in defending against future litigation:
• Follow the CDC's Interim Guidance for Businesses. Implement policies for educating employees about COVID-19, social distancing, and quarantine procedures for those who test positive for COVID-19 or have an exposure to a confirmed case. Immediately separate and send home employees who are symptomatic at work. Follow the CDC Guidelines for Cleaning and Disinfecting the workplace if an employee is suspected or confirmed to have COVID-19.
• If you employ critical infrastructure workers, the CDC has different guidelines, including allowing asymptomatic, but directly exposed, employees continue working if certain precautions are taken.
• Consult OSHA's most recent guidelines as a resource when creating policies. These guidelines are recommendations, not mandates, but OSHA will likely credit good faith efforts to comply with its recommended practices when determining whether to cite for a violation of the broad General Duty Clause. There is no guidance on this point, but we believe OSHA may issue a citation if an employer failed to notify employees of a confirmed COVID-19 case. An OSHA citation should be avoided because it might serve as evidence of a failure to provide a safe workplace in a civil lawsuit.
• Educate your employees and be transparent. Make sure employees know what measures you are taking to protect them. Respect employees' privacy rights, but be aware of their health. Ask them to report any COVID-19 symptoms. Constantly remind employees of the COVID-19 symptoms, and urge them to seek medical attention if symptoms appear. Check in with isolated sick employees; ask about their health. Not only is it the right thing to do, but showing concern to these employees may deter future lawsuits. If a COVID-19 death occurs, consider how you can assist the family with insurance-related issues and funeral costs.
• Inform other employees of a confirmed COVID-19 case in the workplace, but still respect privacy rights. The CDC recommends notifying employees of potential exposure to a confirmed case and instructing those potentially exposed to stay home for 14 days, telework if possible, and self-monitor for symptoms.
• Stay on top of current guidelines and recommendations from federal agencies like the CDC, DOL, and OSHA. Employers should stay up-to-date on all state and local executive orders. Consider assigning a particular person in your office to monitor for changes and share them with management.