Work-related Virus Risk Levels Pose Employee and Organizational Wellbeing Challenges
By Kevie Mikus, Regional Leader, HR & Compliance Consulting
The COVID-19 pandemic has forced employers across the country to rapidly make numerous and significant decisions to maintain the viability of their businesses and ensure the safety of their employees in this unprecedented time. The vast majority of employers did not have an effective business continuity plan pre-COVID and were forced to quickly develop and implement policies and procedures addressing remote work, layoffs, furloughs, pay cuts, workplace conditions, and a host of other issues.
COVID-19 presents a unique challenge because it is unlike anything organizations have faced previously. The Occupational Safety and Health Act (OSHA) imposes a general duty of care that requires employers to provide a safe and healthy working environment. While the law does not directly address a coronavirus pandemic, recently OSHA issued guidelines that employers and employees can take to minimize the spread of the virus and to keep their workplace safe. OSHA can require:
- Cleaning and sanitation
- Screening of employees and on-site visitors
- Social distancing
- Appropriate personal protective equipment (PPE)
- Safety measures if someone at work displays COVID-19 symptoms
Employee level of risk exposure poses implications for employers
The OSHA guidelines for preparing workplaces for COVID-19 determine the risks of exposure to the virus based on industry and role. The risk of employee exposure ranges from “very high risk,” as in the case of healthcare workers, to “low risk,” for those with limited to no contact with others in their daily work. The fear surrounding safety in the face of this pandemic creates some unique employment challenges. For instance, if an employer terminates an employee who fails to report to work based on risk level, that action could create risk for litigation related to a claim of wrongful termination.
Similarly, when the work of an organization and its employees is deemed “essential,” employees are still required to report for work. OSHA states that employers cannot fire, discipline, or take other negative actions against employees who complain about workplace safety. However, even in light of such employee protections, some employees might be afraid of going into work, causing strain in employee relations and ultimately productivity. OSHA does give employees the right to refuse to work if they identify and communicate an imminent danger or a serious safety threat in the workplace that is not effectively addressed and resolved by the employer.
Further, employers who have embraced a remote work policy will need to comply with the Fair Labor Standards Act (FLSA) by asking non-exempt employees to track their time while working from home, and paying any overtime appropriately.
COVID-19-related lawsuits against employers have begun to appear
Not surprisingly, we're already seeing COVID-19-related lawsuits filed against employers. The first suit was filed on March 25 against Walmart by the estate of an employee who passed away due to complications of COVID-19. A second wrongful death lawsuit was filed in Texas against a meat packing company following the death of a forklift driver at the defendant's plant. Plaintiffs alleged that the decedent was told he would be laid off if he didn't report to work—despite exhibiting symptoms of COVID-19. Plaintiffs alleged further that the defendant "refused to take the pandemic seriously, and kept its functions as normal, taking no precautions and implementing no protocols for the safety of its workers."
As more organizations attempt to reopen in the absence of a coronavirus vaccine, likely we will see a substantial wave of employment-related COVID-19 lawsuits, leading to claims under Employment Practices Liability Insurance (EPLI) policies. EPLI is designed to protect an employer in the event of employment-related claims.
Gallagher’s depth and breadth of expertise makes us uniquely prepared to support your organization as you adjust to a new way of operating. We are working closely with many non-profit organizations to determine their return to work strategies, including:
- Policy and procedure development for returning employees safely
- Review of compensation practices, assessment and recommendations for supportive frameworks for employee wellbeing
- Training for managers on effective leadership of a remote team
- Pulse surveys to ascertain your workforce resiliency index, and
- Assessment and implementation of insurance coverages like EPLI as part of risk- mitigation efforts
Our seasoned consulting team stands at the ready; we encourage you to reach out to your Gallagher representative to help your organization face the future with confidence.
Consulting and insurance brokerage services to be provided by Gallagher Benefit Services, Inc. and/or its affiliate Gallagher Benefit Services (Canada) Group Inc. Gallagher Benefit Services, Inc. is a licensed insurance agency that does business in California as “Gallagher Benefit Services of California Insurance Services” and in Massachusetts as “Gallagher Benefit Insurance Services.” Neither Arthur J. Gallagher & Co., nor its affiliates provide accounting, legal or tax advice.