Your firm should already have a written coronavirus workplace safety plan in place. If it doesn’t, stop reading this story and start writing it. We’ll be here when you’re done.
The foundation of your firm’s legal defense is a written workplace safety plan that follows federal, state, and local guidelines for protecting your employees from contracting coronavirus on the job.
According to a July survey of 150 employers, nearly two in three respondents (60 percent) had an employee test positive for COVID-19 since March.
Congress is considering a bill that would create a liability shield for businesses that are the subject of coronavirus-related workplace lawsuits.
What a liability shield would do—according to employment lawyers whose job is to advise firms on how to react to such lawsuits—is discourage plaintiffs and trial lawyers from filing coronavirus-related workplace complaints. It would not provide a legal shield from egregious situations in which an employer was found to be careless, reckless, or knew about the danger of coronavirus infection in the workplace but did nothing to address it. As one employment lawyer put it, a liability shield law won’t provide legal cover to “employer stupidity in the extreme.”
Consider this legislation, should it pass, as the icing on the top of your legal defense against coronavirus-related workplace safety lawsuits. Your written, thoughtful return-to-work plan is the cake.
Offered by Senate Republicans as part of the Health, Economic Assistance, Liability Protection, and Schools Act (HEALS) Act, the liability shield bill is called the “Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act’’ or the ‘‘Safe to Work Act.”
The Safe to Work Act (S.4317) would create a temporary exclusive federal cause of action for personal injury and medical liability claims arising from “actual, alleged, feared, or potential exposure to the coronavirus.” The liability shield would be retroactive, applying to all coronavirus-related workplace lawsuits from December 2019 to October 2024. Here’s a key provision: It would preempt all state laws.
According to a July survey of 150 employers by the employment law firm Blank Rome, nearly two in three respondents (60 percent) had an employee test positive for COVID-19 since March. Twenty percent of those companies reported receiving a coronavirus-related complaint from an employee, with discrimination, Occupational Safety and Health Administration (OSHA)/safety issue, and negligence considered as the top liabilities.
The employment firm Littler Mendelson has identified 462 lawsuits filed between March 17 and July 30 against U.S. employers due to alleged labor and employment violations related to the coronavirus—55 of them class actions. The liability shield bill, should it become law, would require they be dismissed from their respective state courts and refiled in federal court.
In addition, the Safe to Work Act raises the standard of proof for such claims and redefines negligence and willful misconduct in a way that is so broad and so employer-friendly that it’s an almost impossible standard for a plaintiff (an employee or employee’s family) to meet, said Brooke Iley, partner at Blank Rome and co-chair of the firm’s labor and employment practice group.
“It’s basically got any protection you’ve ever wanted,” she said.
Michael Lotito, an employment attorney and shareholder at Littler Mendelson, said the liability shield would discourage the filing of coronavirus-related workplace lawsuits.
If you’re an employer who’s already been served with a lawsuit, a liability shield would greatly increase your chances of winning the case. But dealing with any lawsuit takes time and resources away from businesses already struggling with all the other coronavirus-related disruptions to their businesses.
“It’s not about winning lawsuits, it’s about preventing them,” he said.
As with everything in Congress, the Safe to Work Act does not have a clear path to approval. Democrats are generally opposed to liability shields. The House passed the Democrats’ $3 trillion stimulus bill in May, with provisions for a federal enforceable standard for workplace safety, based on guidance from OSHA and the Centers for Disease Control and Prevention (CDC). The Democratic stimulus bill also includes a provision that would protect workers who complain about workplace safety from retaliation by management.
Preparing your firm’s defense
While Congress does what Congress does, there is a lot your firm can and should be doing to prepare for a potential coronavirus-related lawsuit by an employee or employees.
The best defense against coronavirus-related lawsuits is to follow and implement workplace safety protocols as recommended by federal agencies like OSHA and the CDC. Then follow state, county, and local coronavirus safety protocols where your workplace is located. A total of 16 states require that employees receive coronavirus workplace safety training before they return to work.
Your return-to-office plan should be clearly and consistently communicated to employees and should be based on the federal, state, and local health guidelines in place at the time. The courts understand that this guideline shifts—remember in March, when the advice for most people was not to wear masks?
“If you make a mistake, you can say you relied on the guidance that was available at the time, and that you followed it as best you could,” Iley said.
Lotito said another key element in a return-to-work plan is to have a robust complaint resolution system in place.
“You want to have a place where employees can bring items to the attention of the company before they go outside,” he said.
Human resources leaders and supervisory personnel should be attuned to comments employees make about inadequacies involving personal protective equipment (PPE) and other workplace safety requirements. Listen to what they say about how returning to work is affecting their home life.
With all the uncertainty about masks as political statements, with rumors and misinformation percolating all around, it is critical that employees know where they can go within their company to get a straight answer. Questions need to be funneled to the person or persons within a company who has studied all the federal, state, and regional coronavirus workplace safety guidance and knows how the company is implementing its return-to-work plan.
“You need to figure out whom your company’s source of information is and be able to convey that to employees,” Lotito said. “There needs to be an internal mechanism for people to have access to authoritative sources to answer these questions.”
Another area to investigate is your firm’s Employee Practices Liability Insurance. Speak to your company’s insurance broker about your policy and whether coronavirus-related workplace safety lawsuits are covered. If not, perhaps the policy requires an addendum. And if the policy is up for renewal, it may be worth shopping around to see if other carriers offer such coverage.
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