COVID-19 and the related stay-at-home orders have impacted every employer differently. Some were able to shift to a telework model, while others modified their workplace operations or closed their doors completely. But, as the country moves towards reopening the economy amid the continuing threat of COVID-19, every employer is now grappling with not only how to protect employees from infection but also their business from liability. Even employers who have prepared and implemented well-designed return to work plans are questioning: What other steps can we take to protect our business from employee claims related to COVID-19? We have a few suggestions:
Remain Up to Date on Guidance and Best Practices. If COVID-19 has taught us anything it is to expect the unexpected. Depending upon the location of your workplace, spikes in infection rates could require you to revise your return to work plan to comply with additional state and local guidance or industry best practices. Further, our knowledge of the symptoms, prevention, transmission and treatment of COVID-19 is evolving. A return to work plan must also evolve. Revisions may be necessary to eliminate those practices no longer deemed effective or to implement different strategies. For example, on June 10, 2020, OSHA published guidance regarding the use of masks in the workplace instructing employers to ensure employees know how to properly wear masks and which type of mask is appropriate. Employers must continue to monitor OSHA, CDC and state and local government websites to ensure that new guidance, such as OSHA’s guidance on face masks, is integrated into their COVID-19 prevention strategies.
Communicate Prevention Strategies and Seek an Acknowledgement. We are frequently asked by employers whether, to limit their potential liability, they can or should ask employees to sign advance waivers of liability before bringing them back to the workplace. We generally recommend against doing so as such waivers are disfavored in most jurisdictions, if not completely void as against public policy due to the unequal bargaining position of the parties. Further, employees are generally limited to the exclusive remedy of workers’ compensation laws for work-related injuries and illness arising out of the course and scope of employment. Most state’s workers’ compensation laws prohibit the enforcement of a waiver by an employee of a future worker’s compensation claim. Finally, a waiver may create the impression that the employer does not intend to make an effort to protect its employees. In short, advance waivers of liability may not be an option to minimize employer liability in this situation.
Instead of requiring a waiver upon return to the workplace, employers should consider distributing a written communication to employees explaining the return to work mitigation measures it has employed to reduce the spread of COVID-19. Clearly communicating the measures the employer has taken (and those it expects employees to take) both documents the employer’s commitment to employee safety and reassures nervous employees. The communication should designate a contact person to report any concerns, illness or non-compliance with the mitigation measures. The employer could also consider including in the employee communication an agreement by the employee to comply with any new processes or procedures introduced into the workplace. The communication could then require the employee to acknowledge that the employee is aware of the measures taken by the employer but understands and accepts the risk that he or she could still contact COVID-19 in the workplace.
Inform Employees of Positive COVID-19. Employers should continue to advise employees of any positive COVID-19 cases in the workplace. Without revealing the identifying of the infected employee, employers should advise employees of any positive cases. Doing so is recommended by the CDC and it is entirely possible that OSHA may find that an employer’s failure to notify employees of a confirmed COVID-19 case is a violation of the General Duty Clause.
Respond Appropriately to Employee Concerns. Employees should have a clear channel to direct any concerns about returning to the workplace and should not be retaliated against for doing so. The best way to mitigate claims is to remain engaged with employees and address concerns before they become complaints. If an employee brings forward a concern surrounding COVID-19, it could implicate several employment laws, including the Americans with Disabilities Act, OSHA, Title VII of the Civil Rights Act, the Fair Labor Standards Act, and the National Labor Relations Act. Employers should promptly address any issues as they arise and seek the assistance of counsel when necessary. Of course, an employer who receives notice of a lawsuit by an employee or a complaint by a governmental agency should also notify its counsel immediately. It will be important in the defense of any claim or response to any investigation to preserve documents demonstrating the employer’s COVID-19 return to work plan and safety measures.
As always, if you have concerns or specific questions about how to mitigate the risk of returning employees to the workplace, please reach out to an experienced labor and employment attorney for assistance.
 For general information about implementing a return to work plan focused on traditional infection prevention and hygiene practices as well as engineering, administrative and work practice control measures can mitigate the risks that employees become infected in the workplace, please see https://www.butlersnow.com/2020/05/covid-19-webinar-return-to-work-strategies-for-employers/; https://www.butlersnow.com/2020/05/ramping-up-to-return-to-the-workplace-in-the-post-pandemic-environment/; https://www.butlersnow.com/2020/04/the-potential-costs-of-an-unsafe-workplace-in-the-era-of-covid-19/. Please contact our Labor and Employment section to seek specific legal advice regarding your return to work plans.