Minimizing Risk While Maximizing Safety-Guidance for General Counsel

As General Counsel, you have multiple roles. One as a member of the executive management team and if a public company, responsibility to the Board of Directors (and shareholders). Additionally, you may also manage a legal team. Now is the time to be planning and executing how employees at your organization and your legal team can safely return to the workplace.  As we have already seen,  “reopening” will not happen overnight and, in many cases, is happening in phases. Now is the time to gear up for or be ready to answer the legal questions that will inevitably arise as employees slowly start to return to the office.

It is understandable to be concerned about a possible increase in litigation that may result from reopening while the pandemic is still present.  Yet, if you take a careful approach that makes communication with employees the touchstone of your company’s post-COVID policies, then you will be able to effectively minimize litigation risk and maximize safety when opening the office doors. A dose of flexibility will be helpful too. No one has all of the answers, and there are no precedents.

We are going to touch upon some of the legal, and practical, aspects that you will likely face in the next few months.  We will discuss the need for clear communication with your workforce, the benefits of a phased approach, and various parts of an effective return-to-work policy to make the transition back to the workplace as smooth as possible.

  1. Communication is Key

It is hard to read a news story about businesses reopening without hearing some rather high-pitched warnings of a “boom” in litigation from employees, customers, or vendors in response to opening the workplace.  Fortunately, the reality will be far less dramatic, and there are things that you, as General Counsel, can do to minimize that litigation risk effectively, support your company’s business objectives and keep your team engaged.

One thing you can do is communicate with employees.  Fans of The West Wing television show may remember the quote “information breeds confidence, silence breeds fear.”  That quote carries a lot of weight in navigating this pandemic.

The more that employees and your legal team have information, the more they will feel that they are a part of the solution.  In turn, professionals will be motivated to keep themselves and their co-workers safe and healthy, rather than attack their employer with a lawsuit.  Silence or lack of clarity, on the other hand, will create fear.  No one has all the answers, and a supportive company culture and team approach will serve you and the organization well.

So, here are a few fundamental strategies that should be incorporated when creating policies, which will ultimately make the reopening process much more manageable.

  • No surprises. Avoid having a policy, like temperature taking at the front door, go unannounced until the last minute.  Managing expectations should begin before anyone heads to the office.
  • Indicate what reopening will look like. By taking the time to tell employees (and third-party vendors) how the physical office will be reconfigured, or what social distancing means in your particular office or warehouse space, the likelihood of employee illness and litigation will decrease.
  • Show concern for health and safety. Nothing speaks louder than reflecting how everyone feels.  We all want to be safe in the places where we must spend a lot of our time.  Telling employees that health and safety is a top priority will go a long way to bringing much-needed peace of mind.

In short, once your post-pandemic reopening plan is in place, the first thing you should do is determine how you will communicate that message to everyone who is coming back to the workplace.  Then, of course, you want to make sure you have the policies to back that message up.

  1. Your Practical Return-to-Work Policies

Many measures are at your disposal with regard to minimizing social contact while having employees return to the office.  This list, while not exhaustive, should help provide some ideas on possible best practices.

  • Phased Return. Social distancing is still one of the best ways to keep the coronavirus infection from spreading.  Accordingly, having a phased approach to bringing employees back to work is worth considering.  If half your workforce can continue to work remotely, then you will only have 50% of your workforce in the office at a time, which cuts the odds of spreading an infection in half.
  • What are the motivators for reopening? A simple question and a powerful one. Is it economics, the employees’ needs, a compelling business reason? The answer to this question may frame policies fundamentally.
  • How will the company restart operations and adapt to the workforce? If you are using a phased approach, can the organization operate with partial remote work and partial on-site work?
  • Written Policy. There is an adage that putting something in writing increases exponentially the odds that it will be followed.  Thus, it should go without saying that your organization’s reopening policy should be in writing, and easily accessible to employees.
  • Entrance Checks. Many employers are considering, or have instituted, a system of checking employees’ temperature before they enter the workplace.  While studies have shown that an elevated temperature is not always present even when someone is infected with the virus, such a measure will have some impact on keeping employees with COVID symptoms out of the office. It will demonstrate your commitment to safety.  Whenever possible, use a touchless thermometer for employees who are checked at the office.  It is also possible to require employees to report their temperature before coming to work.
  • Covid-19 Signed Notification. It is a good idea to get buy-in from your employees by making sure your employees sign an acknowledgment that they have received the company’s policies concerning hygiene and safety in the workplace, and that they agree to abide by those rules.
  • Social Distancing. Any part of a reopening strategy needs to take social distancing into consideration.   The physical work area needs to allow for proper social distancing.  Besides, for those employees who have a job that makes social distancing impossible, your organization needs to have protective gear (e.g., face masks, plastic dividers) available for your employees.
  • Chief COVID Officer (or equivalent). You are likely aware of the panoply of federal, state, and local orders, guidelines, ordinances, rules, and statutes related to Covid-19.  There is a lot of conflicting data.  It would be extraordinarily helpful to put one person in charge of keeping track of all of the related public health and safety guidelines to ensure timely compliance.
  • Continue Recommendations on Employees with Symptoms. Early in the pandemic, government guidelines made clear that anyone who manifests virus symptoms should be sent home, and anyone who feels sick before coming to work should stay home.  Those policies must continue to be enforced.
  • Monitoring success. You will need a process to monitor if your workplace is remaining healthy.  That means keeping up with daily checks for signs and symptoms of the virus, encouraging employees who feel sick to stay at home, and supporting flexible leave policies to diminish the chances of sick employees coming to work.
  1. Keep in Mind that the CARES Act and Families First Act Are Still in Place.

Congress passed two relevant laws at the beginning of the pandemic – the Coronavirus Aid, Response, and Economic Security Act (CARES Act) and the Families First Coronavirus Response Act (FFCRA).  Those laws include provisions about extended family and medical leave, and paid sick leave related to employees or their family members who are infected with the virus.  Those laws remain in effect until December 31, 2020.

Be prepared for employees to use the leave time available to them under those laws, especially if they are reluctant to come back to work right away.    The leave allowed under those laws could buy extra time for the employees before you need to worry about taking any adverse employment actions.

Conclusion

There is a great deal to consider when bringing employees back to work at your organization.  Try not to be paralyzed by the prospect of increased COVID-related litigation.  Rather, direct your efforts toward a smart, accessible, comprehensive plan so that if a lawsuit does come your way, you can minimize the company’s exposure because you followed through with your COVID health and safety plan.  Hopefully, the measures listed above can help you make your plan complete.