Q&A: Are we responsible if an employee contracts COVID at our workplace?

Marie Kulbeth, COO and General Counsel at SixFifty
Feb 17, 2022

If your organization is returning to in-office work, you may be wondering: Are we responsible if an employee contracts COVID at our workplace? Marie Kulbeth, COO and General Counsel at SixFifty, joins the show to explain the nuances of liability, help you minimize risk, and share how you can proactively protect your workforce. After you […]

If your organization is returning to in-office work, you may be wondering: Are we responsible if an employee contracts COVID at our workplace?

Marie Kulbeth, COO and General Counsel at SixFifty, joins the show to explain the nuances of liability, help you minimize risk, and share how you can proactively protect your workforce.

After you listen:

Ask a SMB Workplace Question and get featured on POPS! The People Ops podcast.

On this episode, you’ll hear:

  • [01:00] Required COVID-19 precautions
  • [02:00] Additional ways to mitigate risk for your employees
  • [06:20] Tips for communicating your policies well

Transcript

Marie: Are we responsible if an employee contracts COVID at our workplace?

Didi: welcome to POPS, the show that shows you how to shift from human resources, paperwork to people, operations for the new world of work. How by answering one question at a time,

Today to help us answer your question. Here’s Marie Kulbeth, General Counsel and VP of privacy at SixFifty HQ. 

Marie: The answer to that is a typical lawyer answer, which is, it depends. There are a lot of states that have provided protections for employers so that they won’t be held liable as long as they’re not acting recklessly or wantonly with regards.

To the safety of their employees, but you have to ask yourself the question, you know, what does that mean? Can I just do nothing and be okay? And the answer to that question is probably not. If you want to avoid liability, then you need to proactively take some steps to protect your workforce. And the good news is that’s just not a requirement from a legal liability perspective, but it’s good business, right?

You need your workforce to stay healthy so that you can keep your doors open as much as possible. So one of the things to think about when deciding, well, what do I need to do? What proactive steps do I need to take in order to avoid liability is think about, well, what do I know I’m required to do? Even if you’re in a jurisdiction that has lifted mass mandates, or that has said, you know, you can’t have a vaccination policy because there are some jurisdictions that have said that, what can you do?

And the answer is, well, you have to meet your minimum OSHA requirements. And OSHA says, you know, at a minimum, as an employer, you have to provide a safe and healthy workplace for your employees. And so you need to take steps to do that. And there’s some additional mandatory requirements under OSHA that you could think about as.

The very first steps. The first one being that you do have to provide regular routine sanitation and cleaning of your work site. So you have that routine version that you’re already doing because it’s a basic OSHA requirement. And then add to that, which is if you have somebody. Reports that, you know, they’ve been at the work site and now they have COVID or they have symptoms of COVID.

You should go through the sanitation and cleaning procedures that are recommended for COVID outbreaks or COVID exposure. And those are listed very clearly on the OSHA website. You can also find them on the CDC website. Another thing that you can do is you can look at. You know, the specific risks that your employees might face based on how their work is organized.

So for example, if you have employees that are working on a line and a factory, they’re close to one another. You can think through, you know, could I change shift work? So there’s fewer people there at a time. Could I at least at a minimum stagger breaks so that people aren’t congregating in the common spaces and the break rooms all at the same time, can I maybe implement some physical barriers between people.

If, so make sure that they’re impermeable NATO, you know, like something like plastic that can be easily cleaned, but also keep in mind that that’s not enough. The CDC and OSHA have both recommended that if you are putting in those sorts of barriers, it doesn’t mean that you don’t also need to have physical distancing and masking rules in place to really provide protection.

And that is particularly true if you have unvaccinated or high risk employees. And so that sort of brings up the question. Which I treat my vaccinated employees differently from my unvaccinated employees. What about people who may have particular high-risk factors? You know, what do I do? How do I decide how to handle that?

And the first thing you have to do is decide whether you’re going to collect information about vaccination status to be as safe as you could be. You would most likely be doing something like implementing a vaccination requirement for employees that are coming into the work site. But if you’re perhaps in one of the states that is not allowed.

And flourish to do that right now. Or if you have other reasons for not going forward with that sort of policy, you might still collect vaccine information cause that helps you better understand the risk profile of your workforce and will help you make decisions about how best to protect them based on that risk profile.

So for example, If you have unvaccinated employees working on that line in the factory, you know, don’t place them across from one another or across from a high-risk individual, try and stagger them and mix them in with people that are vaccinated. So you’re lowering the risk of spread among those people with the highest risk.

Um, so steps like that could be very important. Similarly, maybe you’re an employer who is transporting your employees. They’re getting in a van or a bus to move around the work site or to go to a work site together. You know, if the weather permits open the windows to increase ventilation, um, if you’ve collected vaccination information, you can make sure there’s not more than one unvaccinated individual and any one vehicle that way.

Again, if there is somebody who’s been exposed or that has brought COVID into the workplace and is going to. Others, it minimizes the risk of that exposure impacting those people that have the highest risk for serious injury illness for death. And so again, like minimizing the risks based on how your workplace is set up.

Similarly, if, for example, You have a workplace where people are interacting with visitors or customers, a lot, maybe high traffic areas, do what you can to reduce the potential for spread between your employers and customers, by doing things like moving the cash registers so that they’re the card readers themselves are further away from your employees.

And that again, could reduce the risk of spread between employees and customers. If they’re interacting with others quite a bit with. We would also suggest if you’re in a substantial or high risk transmission area, the CDC does recommend that everyone be masked, not just unvaccinated individuals. So you might want to consider putting a masking rule in place, both for your employees and potentially for your customers.

And that could again, help reduce the risk. None of these measures will necessarily take the risk down to zero. We’ve definitely seen with Alma Cron that, you know, you can be vaccinated, you can be boosted and you can still get the illness, but the impacts of that illness can be great. We lessened. And so if you can take steps to try and lessen the likely.

Uh, people getting the illness, but also less than the likelihood of those who are most at risk, getting the illness. That’s how you can show that you weren’t reckless in terms of how you treated your workforce and providing safety measures. And that’s how you protect yourself from liability, but it’s also how you keep your workforce as healthy as possible so that they can continue working and producing and wanting to report to work because.

Proven yourself as an employer. One of the things that I talk to employers about quite a bit is communication with their employees. You know, having a policy in place doesn’t do any good. If your employees don’t know what it is. So just having a written policy, isn’t enough to protect you from liability.

You have to communicate it to them and train them to follow it. But in addition to that, beyond the liability question, communicating with your employees helps build trust. So they understand what’s expected of them. And also understand why you’re implementing the rules. So if they understand that it’s coming from a place of reducing risk and keeping it to where your doors can stay open, and they’re much more likely to be on board with the things that you’re asking of them and to want to follow the rules and help make it an effective policy.

And so while you’re looking and trying to determine, you know, what measures should I put in place that are specific to the type of work site that I’m running to the type of, you know, interactions that my employees might be having with each other or with other individuals, we would recommend that you look at sources such as.

OSHA’s website, or if you’re in a state with their own state, OSHA, your state OSHA website, they all have specific COVID-19 recommendations for the workplace, which can be very helpful. Again, if you’re following their recommendations, it’s much less likely that they will come after you for an infraction or that a court would find you liable for not providing a safe and healthy workspace.

And then also. State and local jurisdictions while a lot of them have lifted their requirements. Others still have requirements in place. And even if they don’t have requirements, they almost all have COVID-19 safety recommendations. And then there’s also the option of going through an organization. Like the one that I worked for at six 50, where there’s a lot of businesses and others out there.

Who are helping companies to create COVID safety plans, to create vaccination policies and other things that can help them create a safe and healthy workplace at this time. So we would recommend that you find resources, follow the recommendations and make sure that your employees understand why you’re doing what you’re doing and what is expected of them.

So that whatever actions you decide to take. Are actually beneficial to your workforce and will protect you from liability. If there is an exposure I replaced,

Didi: do you have a question for our experts? Click the link in the show notes, or if you’ve got other ideas and feedback about our show, send them to [email protected]

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