It is obvious that people are experiencing a lot of anxiety right now. People are anxious to get back to some form of normalcy – whether that means getting back to work, to school, and/or to their social lives – but people also are anxious about how to do these things safely, protecting their health and the health of those around them.
For employers, these anxieties include financial worries about their business’s lost revenue, retaining employees, making payroll and staying in business through and after this crisis. Adding to these anxieties is the threat of possible lawsuits if employees or customers become infected and claim that the business is to blame.
One of the most important things an employer can do, today and always, is to create the safest workplace possible for its employees, customers and others with whom they interact. To accomplish this, businesses should start by ensuring they comply with requirements established by the Occupational Safety and Health Administration (OSHA), state and local health departments and other regulators.
However, in today’s climate, businesses should look beyond what is “required,” and to best practices that other states and organizations have successfully established to provide additional protection. Taking these steps can reduce risk for those associated with the business, which in turn can reduce the risk of adverse litigation.
Resources for Re-Opening Public Health Principles
Among the many resources available to provide this additional guidance is the Public Health Principles for a Phased Reopening During COVID-19: Guidance for Governors, a report issued by the Center for Health Security at Johns Hopkins Bloomberg School of Public Health on April 17, 2020. The report provides steps that employers should take at this time to create the safest work environment possible.
At the most basic level, the report provides the following guidelines for all businesses:
Use nonmedical cloth masks
Incorporate engineering controls, such as physical barriers, where possible
Reconfigure space to enable people to distance, ideally at least six feet apart
Support and enable employees to remain home if they are unwell or have been in close contact with someone sick with COVID-19.
Beyond that, the report suggests that businesses assess risk based on key factors:
Frequency of contact
Intensity of contact
Ability to implement additional protections (e.g., barriers or spacing).
For specific industries, the report includes links to states and associations that have issued steps for them to take. For example, for restaurants, the report includes guidance provided by the Food and Drug Administration and the National Restaurant Association. For retailers, the report highlights directives from OSHA and the New York state guidance. Even for business sectors not listed, this information helps identify risk levels and best practices for businesses with similar characteristics and operations.
How to Implement Protections and Reduce Risk of Employer Liability
In addition to identifying and implementing required guidelines and best practices, employers should thoroughly review their workspace and work patterns to apply the necessary protection. Communicating the plan to employees and the public will help others understand the business’s commitment to health and safety, and can have a positive impact on the business, by instilling confidence in it both internally and externally.
Of course, taking protective measures doesn’t guarantee that no one will get sick or file a lawsuit. That being said, there are steps that businesses can take to protect themselves from liability, starting with documenting the following:
Resources consulted for best practices
Steps taken to implement best practices, including the appropriate equipment and training the organization provides employees and how company messaging is being communicated to customers and others interacting with the business
Periodic reviews for compliance and that practices are being updated and followed.
Working together to keep everyone healthy is the best way to move toward something that feels more normal.