The slow reopening of the economy is a welcome relief for businesses. But in a COVID-19 world, it also brings a host of new challenges for employers.
Workers will be seeking to restart their jobs while stay-at-home orders vary from jurisdiction to jurisdiction, personal lives remain disrupted and a deadly virus continues to spread.
“It’s going to require a lot of flexibility on people’s parts for a little while,” said Brian Woolley, a partner with Lathrop GPM’s labor and employment practice in Kansas City.
Woolley urged businesses to develop plans for reopening their businesses safely. A large part of that, he said, will be following the guidelines of the federal Centers for Disease Control and Prevention and the Occupational Safety and Health Administration, both to keep employees safe and to reduce the likelihood of liability.
“It really is going to be an opportunity for employers to redouble their efforts to try to put themselves in a good position to protect their workforce, and also be able to defend themselves if they do get any claims,” Woolley said.
Mary Anne Sedey of Sedey Harper Westhoff in St. Louis, a plaintiffs’ employment attorney, agreed that just because the pandemic is an almost unprecedented experience doesn’t mean employers are excused from their general duty to provide a safe and healthy workplace.
“We know a lot about what to do,” Sedey said. “It’s really important that we pay very serious attention to this, because these are people’s lives we’re talking about.”
Sedey recommends that employers institute common-sense measures, such as frequent opportunities for handwashing breaks, having workers stay 6 feet apart and allowing employees to wear masks.
“I know there are some employers who don’t like the notion of somebody, for instance, in a retail setting wearing a mask,” she said. “But look — we all have to do things differently.”
Ultimately, Sedey said, taking precautions to protect workers is good for businesses’ bottom lines. As customers return to stores, many will refuse to patronize operations that don’t appear to be safe.
“It becomes a win for everybody to do the right thing,” Sedey said. “It’s good for your employees, and in the long run I think it will be good for business.”
Not that employers’ and employees’ interests always will align. It’s possible that some employees still will feel uncomfortable returning to work despite the precautions businesses may take, Woolley said.
“Hopefully you can allay those concerns that the employees have about it being a safe place to work, but at the end of the day, if an employee just refuses to come to work and doesn’t have a reason other than they just don’t want to do it, the employer may have to make a tough decision there,” he said.
And without a vaccine or widespread testing for COVID-19, there’s a good chance businesses will face an employee or customer who contracts the virus. Woolley urged businesses to plan for that eventuality as well, though he noted that a retailer who encounters customers all day long will need a different approach from a manufacturer whose visitors are the occasional vendor.
“Everyone’s going to be different,” he said.
Maureen Brady of McShane & Brady in Kansas City specializes in litigation involving medical-privacy breaches. She’s already representing a man who was falsely labeled as having COVID-19, leading him to lose his apartment and receive death threats. The stigma of that accusation, Brady said, never goes away.
“He can yell from the highest tree that he’s not positive, and nobody’s going to believe him,” she said.
Brady notes that employers who imprudently reveal an employee’s COVID-19 status could face claims under the Americans with Disabilities Act as well as for breach of fiduciary duty to maintain the confidentiality of medical information. Employers should comply with CDC guidelines; beyond that, she said, err on the side of privacy.
“The general rule is that information can go up the chain but not down the chain,” Brady said.