The COVID-19 pandemic presents new and significant challenges to our clients, particularly since the situation is ever evolving. From workplace and employee liabilities, to navigating state Stay-at-Home orders, to business and supply-chain disruptions, to strategizing on moving forward in the months to come, Ciresi Conlin stands prepared to help clients navigate the uncertainty of this unprecedented time. As the world responds to the pandemic, we have been in close consultation with clients in diverse sectors to ensure their success. Ciresi Conlin can help you with a variety of issues related to the COVID-19 pandemic, such as
1. As an employer, how do I keep my workplace and employees safe?
Employers should familiarize themselves with safety guidance from the Occupational Safety and Health Administration (OSHA), Centers for Disease Control (CDC), state and local authorities, and leading health experts. As the COVID-19 pandemic response is rapidly evolving, it is essential to monitor and stay up to date on the latest developments from governmental and health authorities. Employers have available to them a panoply of protective measures and precautions, some of which are discussed below.
2. What protective measures are available while complying with OSHA and other workplace protections?
While statewide stay at home orders remain in effect, employees who are able to work from home should continue do so. As such orders are lifted, each employer will need to assess not only whether to reopen workplaces, but how to do so safely. Moreover, in many sectors work from home is not a viable option. Where employees are present in person to perform essential job functions, there are a number of protective measures employers can and should take. Among other precautions, employers should ensure that anyone exhibiting potential symptoms of COVID-19 not be admitted, and restrict non-employees from accessing the workplace wherever possible. The Equal Employment Opportunity Commission has recently issued guidance permitting employers to ask questions about COVID-19 symptoms to employees, and as some people carrying the virus may be asymptomatic, to administer a COVID-19 test and take temperatures, provided the testing is accurate and reliable.
Once employees are in the workplace, precautions employers can and should take include enforcing social distancing guidelines, altering workspaces and shifts to prevent overcrowding, requiring and training for personal protective equipment (PPE) such as masks, increasing air filtration, stepping up efforts to clean and disinfect workplaces, permitting time and space for adequate employee handwashing and hand sanitizing, ensuring break and lunch spaces are not crowded, and taking additional steps.
As more information becomes known about COVID-19, best practices will change, so staying informed on the latest information is key.
3. As an employer, can I be liable for COVID-19 spread in my workplace?
Potentially yes, especially if an employer fails to take reasonable steps to protect its employees. Note that, even if following all recommended practices and procedures, COVID-19 may still spread in a workplace. While not an exhaustive list, employers face potential liability for failure to protect from workplace hazards, workers’ compensation claims, and negligence-based or other tort liability. Despite the relative recency of the outbreak, a number of suits have already been filed, with more anticipated in the coming period.
Importantly, employer legal exposure is not uniform across all industries or all jurisdictions, and every employer needs to assess its individual risk and respond accordingly.
4. What does it mean to be an “essential” or “critical” industry or worker?
References to “essential” or “critical” workers allude to a designation by the Department of Homeland Security (DHS), which has issued guidance classifying certain “essential critical infrastructure workers” who work in various “critical infrastructure sectors.” These sectors include healthcare, food and agriculture, energy, communications, and others. The DHS guidance does not mandate that any particular industry must continue to operate, but instead classifies those sectors and workers upon whose work Americans depend during the outbreak. The DHS guidance is intended as an aid to governments and businesses in their decision making about whether and how to continue operations during the COVID-19 pandemic.
5. Should I have different policies for different business units?
To the extent necessary to adequately protect employees, yes. The threats posed by COVID-19 are not uniform across industries, or even across business units within one company. Employers should work to tailor their COVID-19 responses to the unique situations of their business.
6. What do I do if COVID-19 affects my ability to perform on my contracts, or receive performance from another under a contract?
Business litigation and disputes will proliferate as COVID-19 related closures, delays, and losses mount daily. Every case is different and contract disputes are always contract-dependent, yet certain common questions related to force majeure, impossibility of performance, frustration of purpose, and similar issues are likely to arise.
If COVID-19 related challenges are facing your business, Ciresi Conlin is here to help.