As the country reopens, corporate liability comes into focus
The family of a Walmart employee who died due to complications of COVID-19 filed a wrongful death lawsuit against the company last month.
The suit claims that Walmart managers failed to follow Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA) recommendations, such as properly sanitizing the store and enforcing social distancing guidelines, and put employees at higher risk of contracting the virus.
Corporate liability is suddenly in the spotlight as businesses start to reopen and lawsuits begin to mount. As of early May, nearly 800 COVID-19-related lawsuits had been filed in the United States.
Senate Majority Leader MItch McConnell said that the next round of pandemic relief legislation must include protection for employers, but workers’ rights advocates argue that companies then would not have an incentive to ensure a safe environment for their employees.
U.S. Chamber of Commerce Chief Policy Officer Neil Bradley suggested that only employers who follow CDC and OSHA guidelines would be protected from lawsuits. “No one wants to protect bad actors here,” he said. “But businesses that are trying to do the right thing shouldn’t be second-guessed a year later in a court of law.”
But advocates complain that the agencies have not done enough to protect workers.
“The federal government, particularly CDC and OSHA, is failing to provide the clear and specific guidance necessary to encourage relatively consistent adoption across the country,” said Geoff Freeman, president of the Consumer Brands Association, which represents grocery manufacturers.
CDC and OSHA have indeed published guidelines for safe operations during the pandemic; they just haven’t been enforced.
But the main challenge for businesses reopening will be finding a way to regain the productivity needed to restore financial health while minimizing the risk associated with employee exposure to COVID-19. Ultimately, success resides in the flexibility to follow evolving guidelines and the ability to demonstrate that best efforts were taken to ensure workplace safety.
More Recommendations for Safe Reopening Released
Last week, the National Safety Council released the framework for their SAFER (Safe Actions for Employee Returns) Initiative, a document that includes guidelines for employers to reopen safely after the COVID-19 closures.
In it, the NSC offers recommendations for preparing physical workplaces for employees to return that include:
- Developing site cleaning guides and frequency targets (hourly or daily, for example), specifically addressing areas of heavy usage (such as restrooms, elevators buttons, and door handles)
- Training for proper disinfection techniques and chemical labeling protocols
- Inspecting building infrastructure, such as HVAC and water systems and installing new filters
- Procuring and storing personal protective equipment (PPE)
- Deploying site pre-check assessments and readiness audits prior to reopening
- Providing easy ways for employees to self-monitor symptoms and report unsafe behavior
The document includes a disclaimer that it does not create legal obligation or establish any basis for liability. “The core objective of SAFER is establishing sustainable safe operations for employers and workers as they navigate what the world of work looks like as a result of the COVID-19 pandemic,” it states.
Whether they are legally obligated or not, more than three-quarters (77%) of CFOs said they plan to change their workplace safety measures upon reopening, according to a PricewaterhouseCoopers (Pwc) survey.
“While business leaders begin to forge strategies to bring employees back into the workplace and to engage with their customers in person, they are realizing that the physical workplace and customer experience will be drastically different from before the COVID-19 pandemic,” said Amity Millhiser, PwC’s Chief Clients Officer.
The occupational landscape is not likely to look the way it did a few months ago for a long time to come — if ever.
New Safety Measures May be Here to Stay
In a post-COVID-19 world, new workplace safety rules are likely to create more jobs for people to enforce those rules.
“Occupational health professionals will be key to reopening the country,” Eric Bacon, CEO at AMD Global Telemedicine told FOX Business. Bacon also believes that demand for on-site health clinics could increase to provide more convenient health care to workers.
In a recent statement, a Department of Labor spokesperson said that OSHA “currently has a number of job openings for positions that will help us keep America’s workplaces safe. Anyone interested in working for OSHA can visit https://www.usajobs.gov for more details on how to apply for a job protecting America’s workforce.”
Experts predict these new health and safety jobs could stick around long after the COVID-19 pandemic is over.
“Workplaces will never be the same again,” said Bacon.
Deploy Digital Checklists at Scale to Protect Your Workspaces
In an article about COVID-19-related safety complaints, EHS Today recommended employers document all the proactive measures they take to reduce the risk of Coronavirus infection at their workplaces.
With Fulcrum, employers can deploy a suite of digital checklists to their workforces to ensure proper steps are being taken before reopening and continue to take place after, as well as provide validation of those efforts.
Fulcrum enables you to quickly build custom checklist apps — for everything from employee self-reporting to workspace configuration to cleaning inspections— for your teams to complete on the mobile devices they’re already carrying.
Records in Fulcrum are automatically timestamped and geotagged, so managers can see in real-time exactly when and where a checklist item is completed, whether it’s by an internal team member or an outsourced cleaning or risk mitigation firm. This gives companies visibility across an extended enterprise so they can evaluate the effectiveness of their COVID-19 safety measures and respond quickly when action is required — even through automated workflows.
For example, a “failed” cleaning inspection report might trigger an email to a facilities, operations, or risk manager who then tasks a cleaning team to remediate. A follow-up inspection that includes rich media like photos and videos can then be completed to demonstrate that the issue has been resolved.
COVID-19 safety guidelines create more responsibility than ever for employers to protect their workers and customers even while they struggle to recover from revenue losses incurred by the mandated closures. We’re here to help.
We’re offering our platform at no cost, with support to get your teams onboarded quickly, for 90 days for COVID-19 response operations. Contact us to get started.