Liability and Reopening A Business or School During COVID-19

2020 is a year that will forever be remembered as the year the COVID-19 pandemic swept the world. Unfortunately, in corporate circles it will also be remembered for a very large number of lawsuits brought against employers and companies because of the pandemic. So far according to the American Bar Association, 800+ lawsuits have been filed against employers, universities, schools, and companies related to the COVID-19 pandemic and that is just the tip of the iceberg.

Companies are starting to realize they must follow CDC, OSHA, federal, and state guidelines on how to bring employees and students back to work and they need to keep full documentation on the process to begin to mitigate the risk of the lawsuits that are sure to come.

How do you bring employees back to work safely without having to worry about someone coming into work sick and infecting the whole workplace?

How do you bring students back to school without causing a widespread outbreak on campus?

Businesses and schools are looking for answers and it’s already confusing enough with new information coming in daily. Having everyone tested for COVID-19 by PCR on a more frequent basis is not really a plan. Here’s why.

Here are the main situations employers are seeing arise:

• Negligence claims

• Federal guidance compliance fallouts (OSHA, ADA)

• Worker’s compensation claims

While we are not lawyers and the contents of this post is not legal advice, we have worked with numerous customers and have heard from many HR leaders and hence we can discuss the first of these here.

An example of a negligence claim:

Sally’s employer E.B. Farnum & Co implemented a system that ensured that everyone at the workplace was symptom free and only used thermometers at the gate and a paper checklist to ask questions on COVID symptoms that was limited to four simple questions with yes/no answers.

Because relying on peripheral thermometers to catch a fever as a symptom is fraught with errors [Ann Intern Med. 2015;163:768-777. doi:10.7326/M15-1150] and E.B. Farnum used sub-standard means of syndromic surveillance and failed to keep proof that 100% of people who were allowed on site at work had self-certified that they had no known close contacts with people with COVID, had not travelled to an area with massive community spread, and were symptom-free for COVID – not just today, but for the preceding 14 days – they were in deep trouble.

Sally caught COVID-19 from a coworker at work and passed it on to her family (the plaintiff) – two of whom now have permanent lung damage. Sally’s family argued that E.B. Farnum & Co did not implement best practices to ensure worker safety. E.B. Farnum & Co (the defendant) argued that they did.

They however could not prove that they did. The pieces of paper from 4 months ago couldn’t be found. The ones that were found could not be authenticated as original.

However, thankfully, Sally’s case is made up.

In real life, E.B. Farnum has implemented Quickscreen. They have a 100% compliance and real-time data with historic data to prove that they implemented best practices that included:

• Employees check temperature at home.

• They complete syndromic surveillance prior to coming on the work site.

• They have real-time communication with their supervisor if they have any concerning symptoms.

• They are prevented from reporting to duty if they are sick.

Sally never got infected and her family never got lung disease from COVID-19.

E.B. Farnum & Co’s HR department was able to securely store employee health data on a platform that was HIPAA compliant in an ADA compliant manner that separated health data from other employee HR records. They never even had a liability claim filed against them.

More than liability claims, employers care about the well-being of their employees. Implementing a system like Quickscreen ensures that you maintain employee health and morale.

Looking for additional guidance or help in reopening your business or bringing your students back to school? Reach out to us and we can help.