Unfortunately, this is no childhood bedtime story. An alternative title (with apologies to The Bard) could be “The Winter of our Discontent.” The unflappable Dr. Anthony Fauci, Director of the U.S. National Institute of Allergy and Infectious Diseases, has declared “it is inevitable that we will have a return of the virus” and that “how we handle it…will determine our fate.” Not to be outdone dramatically, immunologist Dr. Rick Bright has testified that America “faces the darkest winter in modern history” if we do not act decisively to prevent another outbreak later this year.
Admittedly, this is not the “feel good” post in our Planning For The Rebound series. But there is an illuminating, positive fact: You are already taking the steps necessary to prepare for a fall return of the virus. Your current actions to help your employees emerge from residential shelter and safely, methodically, compassionately – and legally – return to the workplace, will serve you well if/when we again see headlines with those now all-too-familiar words like “hotspot” and “surge.”
THE LEGAL CONSIDERATIONS: A Retrospective and a Forecast
California WARN Act
On March 17, 2020, Governor Gavin Newsom issued an extraordinary executive order suspending the 60-day notice requirement otherwise required for employers seeking to engage in a mass layoff or workplace closure under California’s Worker Adjustment and Retraining Notification (WARN) Act. The Governor’s order regarding the California WARN Act is emblematic of the “pass” that California employers have tacitly received from government officials as they attempt to surmount the parade-of-horribles the coronavirus has wrought upon their employees, customers, and financial well-being. Looking ahead, employers would be prudent to not expect similar treatment when COVID-19 rears its ugly head once again.
The rationale behind the Governor’s California WARN Act suspension was the unexpected and unprecedented need for the rapid closure of workplaces throughout the State, and the Governor’s corresponding declaration of a State of Emergency two weeks prior. Whereas the Governor described COVID-19’s impact on the needs and realities of the business community as “unforeseeable,” the same will not be said moving forward. Though the Governor’s California WARN Act suspension remains in effect through the duration of the State of Emergency, employers faced with a workplace closure or significant employee layoffs should immediately consult with legal counsel, given the considerable penalties associated with violations of California’s WARN Act.
Four Keys To Reducing Liability When The Fall Surge Hits
Not all employers will respond to a fall outbreak by reinstituting telecommuting and furloughs. Essential businesses undoubtedly will be continuing to operate in some fashion, with many employees needing to work together. Accordingly, even with social distancing and appropriate sanitation standards, there will be an increased risk of employee exposure and infection.
1. Statutory Immunity. During a fall outbreak, employers will have an increased focus on reducing their legal liability should any of their returning employees subsequently get diagnosed with COVID-19. Indeed, management of such risks for businesses that are trying to reopen has been a priority for President Donald Trump, U.S. Senate Majority Leader Mitch McConnell, and U.S. House Minority Leader Kevin McCarthy; all have made statements supportive of some limited form of statutory immunity for employers whose returning employees subsequently claim that they were infected at work. Such efforts follow earlier executive action by President Trump to declare meat-processing facilities as critical infrastructure under the Defense Production Act, which resulted in subsequent statements by the U.S. Department of Labor that it would consider requests to participate in litigation in support of an employer’s compliance program if meat, pork, or poultry processing employers demonstrated good faith attempts to comply with OSHA standards.
2. Cal/OSHA Interim Guidelines. On May 14, 2020, Cal/OSHA released interim general guidelines. Among other things, California employers are all required to maintain and implement Injury and Illness Prevention Programs that include infection prevention measures previously discussed in this series, including encouraging sick employees to stay home and encouraging teleworking wherever possible. While the interim general guidelines do not impose new legal obligations, they provide additional confirmation as to what expectations California employers might need to meet to demonstrate good faith compliance in order to defend themselves against potential COVID-19 exposure lawsuits by employees.
3. Workers’ Compensation. Employers concerned about bringing back employees to the workplace have a number of options to manage risk, including one already in place. California’s workers’ compensation law covers employee illnesses and injuries resulting from the workplace, and employers can attempt to invoke such law to preempt—and defend—potential COVID-19 exposure lawsuits. Note, however, that while employees typically need to prove that they were exposed to such an illness on the job to be eligible for benefits, on May 6, 2020, Governor Newsom signed an executive order which creates a time-limited (60-day) rebuttable presumption concerning job nexus if employees are confirmed positive for COVID-19 within 14 days of performing a labor or service at a place of work after the stay at home order was issued on March 19, 2020.
4. Liability Waivers. Employers may also try to minimize risk by requiring their employees to sign liability waivers. The waivers would seek to limit negligence claims/damages that employees could pursue against their employers for exposure (actual or potential) to COVID-19. Such waivers would be unlikely to protect against lawsuits alleging gross negligence, or willful/wanton, intentional, or reckless conduct. While there are no guarantees that such waivers will successfully protect employers against all claims by employees for COVID-19 exposure, employers who are making good faith efforts to comply with existing public health protocols should consider preparing such documents that contain at a minimum the following elements:
- Detailed notice of the potentially hazardous conditions associated with COVID-19 and your workplace;
- Clear and unambiguous language of the rights being waived;
- Reasonable and clear scope of the waiver;
- Memorializing the consideration exchanged between the parties; and
- An explanation of the consequences of refusing to sign the waiver.
THE PRACTICAL CONSIDERATIONS (Back to the Future…?)
First Practical Rule of Return: Create (or Maintain) a Multi-Disciplinary “COVID-19 Response Team”
Taking a lesson from Hirschfeld Kraemer’s workplace violence/insider threat response practice, if you have not done so yet, create a “COVID-19 Response Team” composed of stakeholders and decisionmakers drawn from HR, facilities, legal, finance, labor relations, security, IT, and key business units. This multi-disciplinary team should not be a star chamber issuing directives from on-high; integrate employees into the process. Not only will this ensure that your decisions regarding how, where, and when to work will be effective, but you will be building trust, now more essential than ever.
Second Practical Rule of Return: Learn From Your Mistakes
The good news: If you are in a position to think about what to do when there is another outbreak, that means you survived the first one. Congratulations! Now we have to learn from our mistakes. As described in the section above, neither the law – nor your employees – will be so forgiving of our stumbles the second time around. It is time for your COVID-19 Response Team to do a “gap analysis” of the following considerations:
- Telecommuting: Did it work…well? If not, was it a hardware, a software, or a human problem? Get it fixed now, before your pressing need for remote work options reemerges.
- Crisis Communications: Dealing with crisis communications is (hopefully) not something you have had to do very often, if ever. Way back in March, when the phrase “safer at home” was as novel as the virus, you were given some latitude for being less than clear in providing direction and inspiration to your workforce. Your employees and their families won’t be so forgiving this time around. Having to announce a retreat back to shelter-in-place, with all the associated pain and anxiety, will test the communication skills of even the strongest leaders. You will need to be clear, compassionate, and confident – even if you have to fake the latter.
- The furlough/layoff/RIF conundrum: This is not only a legal consideration, it is a practical one as well. The COVID-19 Response Team should work together with your business units to plan for the worst-case scenario: What if you have just brought back your furloughed workers, only to have to repeat the process again? As suggested above, there will be a real question whether this is an “unforeseeable” circumstance – so work the problem now. Under the guidance of legal counsel, do the necessary financial modeling and payroll evaluation; use your experience of the spring 2020 outbreak to get out ahead of the fall 2020 possibility. Keep in mind that you now may be returning to the workplace with a smaller, more nimble and efficient workforce, which means that your next round of layoffs may be more surgical and limited – a good thing, but your selection process also may be subject to greater legal scrutiny. Finally, don’t forget to plan, perhaps optimistically, for the “post-vaccine” 2021 future of your organization; recovery considerations must be part of your strategic workforce planning.
Third Practical Rule of Return: “Be quick but don’t hurry.”
Coach John Wooden’s memorable maxim applies forcefully to an organizational response to future pronouncements of a fall outbreak. Despite COVID-19 dominating the 24-hour news cycle, don’t assume you will get a lot of lead time to plan, let alone implement. So do the advance preparation now. You have held fire drills, active shooter programs, even a statewide “Great California Shakeout.” Apply those same concepts here, and we will get through this together, again.