3 Tips for COVID-19 Risk Management

As the effects of the coronavirus pandemic are experienced across the country, wrongful death and gross negligence claims are on the rise, particularly by the families of employees who believe their loved ones may have come into contact with COVID-19 on the job.

Under normal circumstances, workplace injuries and illnesses are handled through the workers’ compensation system. Wrongful death and gross negligence claims are, however, brought as civil actions and almost always include demands for pain and suffering and punitive damages.

We offer the following three tips to avoid COVID-19 civil liability traps.

Tip #1: Engage a third-party to audit your COVID-19 safety policies, practices, and daily operations.

Civil liability is based largely on a failure to act with reasonable care. In the COVID-19 context, reasonable care may be demonstrated by compliance with guidelines set by the Centers for Disease Control and Prevention (CDC), the Occupational Health and Safety Administration (OSHA), and the relevant state agencies. An effective third-party audit should include a comprehensive review of your company’s compliance with CDC, OSHA, and state guidelines and, if necessary, recommendations for compliance improvements. Although you cannot guarantee a hazard-free workplace, a demonstrated fidelity to legal compliance will significantly improve your company’s ability to defend against civil liability.

Tip #2: Develop a plan of action to respond to a probable or confirmed case of COVID-19 in the workplace.

If your workplace is exposed to COVID-19, it is best to respond according to a strategic plan that is based on federal and state standards. Many states have a particular protocol that must be followed, as a minimum standard, where there is a probable or confirmed case of COVID-19 in the workplace. Even if your state does not have certain requirements, as an organization, you will be in a better position by responding within an organized framework.

Tip #3: Stay current with state and local standards.

Notwithstanding CDC and OSHA guidance, COVID-19 safety regulations are more intensively managed on a state level. As one example, certain states have mandatory quarantine restrictions when returning from designated “hot spots,” while other states may encourage (but not require) quarantine. In addition to state restrictions, certain localities have their own set of protocols. For full compliance, employers are best advised to seek guidance to stay on top of dynamic state and local standards.

BONUS TIP: Do not rely on liability waivers.

Gross negligence, particularly in the wrongful death context, generally cannot be waived. Even if your state law allows for such a waiver, OSHA’s safety standards and workers’ compensation claims are generally not waivable. Instead of investing your resources in waivers, consider having your employees sign an acknowledgment of your safety plan and COVID-19 reporting procedure. An acknowledged safety plan and reporting process would be useful in demonstrating that your company is serious about compliance and exercised reasonable care regarding COVID-19.

If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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