COVID-19 Test Claims Against Employers!

Some interesting and pertinent information was delivered in a webinar yesterday presented by the law firm Jackson Lewis, that I thought important enough to go ahead and send this right out.

Marla Presley, one of their Managing Principals and Office Litigation Manager presented the information regarding personal injury claims that are being brought as a result of COVID-19.  I’ve mentioned the risk of various claims in my last two HR Briefs; however, she provided some insight into additional ways employers can protect themselves.

There are “test cases” being considered now for negligence by the employer filed by employees who believe they contracted COVID-19 in the workplace.  Typically, Workers’ Comp would provide immunity to the employer from an injury-type claim; however, these test cases are being seen whereby plaintiffs’ lawyers are seeking diligently ways to bring tort claims against the employer on the grounds of negligence, wrongful death, intentional and negligent misrepresentation.

Ms. Presley stressed, “If a court allows just one employee to bring a case against the employer…” the floodgates would open. 

So, the take-aways I’m eager to share are these:

  1. Negligence could be considered a failure to follow the guidelines put forth by OSHA for employers and the CDC.  (“Employees are actively making complaints to agencies responsible for enforcement.”)
    1. If the employer or employee(s) is not following the instructions set by these guidelines, the employer can be found negligent!

[Did you get the ramification of this?  You may have every poster up reminding of the do’s and don’ts, checking temps and asking those health questions daily, instructing employees to wear masks when they can’t social distance within 6’, etc.  but if you’ve got an employee or two, who for example, are not wearing their masks, or who are allowed to work sick and not made to go home, and an employee comes down with COVID-19; you could possibly be held liable because you (the employer) failed to enforce your own rules!]

Lesson:  Supervision make every effort to have EVERY employee follow all instructions.  If they don’t, documentation should show the action taken by management.  And there should definitely be some type of action! 

  1. Another common theme among the claims being seen are based on the lack of information or mis-information.  
    1. The importance of open communication during this time is key.  For those companies who already struggle in this area, there’s no time like the present to begin overcoming the communication-hurdle.
    2. Management needs to regularly meet with all employees together to discuss the COVID-19 Plan—and you should have one—that states how you handle employees arriving at work (temp checks, questions, etc.), what rules you’ve put in place (e.g., masks, social distancing, varied lunch breaks, etc.), and how the company is going to respond when an employee is sick at work, and when there is an employee who tests positive and has exposed coworkers.  These are the very items that should be discussed with employees on a regular basis—that’s right, more than once.
    3. Listen to your employees’ concerns and respond.  If you don’t have the answer right then, be honest.  Tell them you’ll get them the answer. 

These open discussions with employees will drastically reduce the lack of information and mis-information that seems to feed the gossip grape-vine.  By meeting with ALL employees together, ALL employees hear the same thing; so no one can leave a meeting and claim he/she heard this…

  1. Designate a person to conduct an audit regularly.  After your COVID Plan is in place, the audits will document management’s efforts to ensure the workforce is following your Plan and guidelines.  Something as simple as a quick “walk-about” to check distancing and make sure masks are being worn.  Conduct these audits often and document them.  And remember, if an employee is not adhering to management’s instructions, appropriate consequences should follow.

Finally, the question was asked about Waivers and how much protection a signed waiver would provide if a claim were made.

Ms. Presley stated that one “can’t waive a prospective claim” because it hasn’t happened.  Therefore, based on her expertise, a signed Waiver from by the employee probably would not offer protection against a future claim.  And with regard to Workers’ Comp, an employee cannot waive his/her rights under those laws anyway.  

I hope this has been helpful.  As much as I’m concerned for your employees’ health, as I’m sure you are; my passion is assisting Small Business Owners and Managers.  My ultimate goal in that endeavor is to provide recommendations and information, based on my expertise, that will protect them and their Company!

If this information was helpful to you, I’d love to know!  Thanks for reading.  Stay well and safe!

Webinar:  Reimagining the Workplace, Marla N. Presley, JacksonLewis, 7/7/20


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