Are Employers Liable for COVID Work Comp Claims?

As states and towns shift their back to work plans for businesses, we are hearing this question a lot:  Am I liable if one of my employees states they contracted COVID at work?

This is a complicated but relevant question that each business owner must look into as it relates to their own set of circumstances.  According to the National Conference of State Legislatures, the answer to the question "Does Workers' Compensation Cover COVID-19" depends on many factors, such as the state, industry, occupation, size and structure of the operation.  The NCSL goes on to state that "Generally, workers' compensation does not cover routine community-spread illnesses like a cold or flu because they usually cannot be directly tied to the workplace."    However "some states have made exceptions for certain workers who develop chronic illnesses, like cancer, resulting from exposure to harmful materials and environments." 

Am I liable if my employee states they caught COVID at work?  Worker sitting on the floor working on a tire and wearing a mask.  Photo courtesy of Kasarin Naipongprasit on Unsplash

So, could a worker's environment be considered harmful?  Could catching COVID from work be proven?  These are all good questions.  Perhaps the best strategy in this ever-evolving situation is a good return-to-work plan that protects your employees, AND your business.  We like the following from our friends at Genesis HR Solutions.

 
Return to Work Planning:  A Guide for Businesses
by Kim Piccolo / Genesis HR Solutions
 

Returning to workplaces will be anything but “business as usual” for the hundreds of thousands of organizations and nonprofits shuttered by the COVID-19 pandemic. For small to midsize businesses grappling with when and how to reopen, we’re here to help. Now is the time for employers to reshape their workplaces for the betterment of employees and their businesses altogether. In this article, we’ll discuss the main things to consider when creating your return-to-work plan.

Return To Work Plans: Why Your Business Needs One

A return-to-work plan is typically created to help reintegrate workers who have been injured or on leave; it includes details on how the worker will gradually return to work and any job-related specifics. In preparation for reopening after COVID-19 closures , it’s imperative that employers construct a similar return-to-work plan for their employees to keep everyone healthy and safe.

Putting a thoughtful, comprehensive plan into place doesn’t only benefit employees but employers as well. Done right, the clarity and direction provided by such a plan usually leads to increased employee engagement, reduced turnover, improved communication, and higher morale. Employees who are provided return-to-work plans are able to get back to work quicker than those who don’t; employers generally see increased work productivity following an employee’s return to work.

The benefits of return-to-work plans are undeniable. While these plans are typically customized on an individual basis, employers can use the basics of a return-to-work plan to build their approach to how employees return to work following the COVID-19 pandemic.

Your Return To Work Plan: 7 Considerations

While employers may need to tailor their organization’s COVID-19 return-to-work plan to employees’ specific needs (e.g., child care arrangements, caregiving responsibilities and health issues), having a generalized plan in place can help them safely reopen their business.

Your COVID-19 return-to-work plan should include the following:

1. An Anticipated Return-to-work Date

With the uncertainty that COVID-19 has brought, it’s important to be clear about the date employees are being asked to return to work. However, while you should strive to communicate a specified date, it’s important to be flexible, as local and state orders are frequently updated.

2. Disinfecting & Cleaning Measures

COVID-19 can remain on surfaces long after they’ve been touched, making it necessary for businesses to frequently clean and disinfect the facility. Some best practices include:

  • Cleaning and disinfecting all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails and doorknobs
  • Discouraging workers from using other workers’ phones, desks, offices, or other tools and equipment, when possible (if necessary, clean and disinfect them before and after use)
  • Providing disposable wipes so that commonly used surfaces can be wiped down by employees before each use

3. Social Distancing Protocol

Be clear about your policy regarding social distancing, or deliberately increasing the physical space between people to avoid spreading illness. Social distancing best practices for businesses include:

  • Avoiding gatherings of 10 or more people
  • Instructing workers to maintain at least six feet of distance from other people
  • Hosting meetings virtually when possible
  • Limiting the number of people on the job site to essential personnel only
  • Discouraging people from shaking hands

4. Employee Screening Procedures

To keep employees safe, consider conducting screening procedures to identify potentially ill employees before they enter the office. The Equal Employment Opportunity Commission (EEOC) permits employers to measure employees’ body temperatures before allowing them to enter the worksite. Any employee screening should be implemented on a nondiscriminatory basis, and all information gleaned should be treated as confidential medical information under the Americans with Disabilities Act—specifically, the identity of workers exhibiting a fever or other COVID-19 symptoms should only be shared with members of company management with a true need to know. Be sure to notify employees of the screening process to avoid any surprises.

5. Employee Safety Training

A return-to-work requirement should be creating detailed information around new safety policies and procedures to ensure all employees understand how they can prevent the spread of COVID-19. The plan should include the following:

  • Respiratory etiquette and hand hygiene—Businesses should encourage good hygiene to prevent the spread of COVID-19. This can involve:
    • Providing tissues and no-touch disposal receptacles
    • Providing soap and water in the workplace
    • Placing hand sanitizers in multiple locations to encourage hand hygiene
    • Reminding employees to avoid touching their eyes, nose, or mouth
  • Personal protective equipment (PPE)—PPE is worn by individuals to reduce exposure to a hazard such as COVID-19. Businesses should focus on training workers on proper PPE best practices. Employees should understand how to properly put on, take off, and care for PPE. Training material should be easy to understand and must be available in the appropriate language and literacy level for all workers.
  • Staying home when sick—Encourage employees to err on the side of caution and stay home if they’re not feeling well or are exhibiting common symptoms of COVID-19 (e.g., fever, cough, or shortness of breath).

6. Mental Health Considerations

The COVID-19 pandemic has increased stress levels for everyone. It’s important that employers consider ways they can help manage the stress, and that the return-to-work policy communicates the options employees have with regard to managing mental health.

7. Process For Individualized Requests

Every employee faces a unique situation at home or with their health. Even though many people will return on a regular schedule, some may need special accommodations. Thus an employer’s return-to-work plan should include information about how employees can go about making individualized requests for changes to a return-to-work plan. Some may have underlying health conditions that put them at greater risk of severe illness with COVID-19, meaning they may not be able to fully return to work. Others may need to make special child care arrangements due to school and daycare closures. Employers should be flexible and compassionate in response to individualized requests.

Best Practices

As business slowly returns to normal, consider the following best practices to keep staff motivated and your reputation unharmed:

  • Put your employees first—First and foremost, keep in mind the health, safety, and well-being of employees when making business decisions. The coronavirus pandemic has led to a collective loss of normalcy; the everyday routine of returning to work may, in many cases, be a welcome change for them.So continue supporting your employees over the long-term and checking in to see how things are going. As you protect your company brand from COVID-19 implications, current employees can be the main drivers of your reputation.
  • Follow government advice—If your team has been working remotely due to shelter-at-home orders, the first topic your company needs to address is when to reopen the office. For this, employers should be looking to their local health departments and government for guidance.
  • Prioritize safety—Along with ethical reasons, employers have a duty under the Occupational Safety and Health Act to make sure they provide a safe workplace. Considerations include testing, social distancing, personal protective equipment, sick leave policies and business travel guidelines.
  • Keep communication open and honest—Internal communications can help keep employees calm and reduce stress levels. Everyone’s been dealing with much uncertainty. There’s a need to communicate with employees openly, honestly, and frequently. The same goes for external audiences like customers and partners. Go with what’s authentic for your company, whether that’s regular updates, or tips and tricks to stay safe. This is a good time to reinforce transparency. Keep communication accurate by leaning on credible sources.
  • Ask for feedback and answer questions—People may be scared and have a lot of questions. Create an open channel for stakeholders to submit questions. Answer them as soon as you can, and provide the responses to everyone. If one person is wondering about something, there are probably more who are wondering the same thing. An open line of communication is key to establishing trust.
  • Reach out to industry partners—Chances are your industry partners are in similar situations. Share information and work together with your industry regulators and influencers to move forward. Consider partnerships that could help your customers or employees.
  • Be a thought leader—While reputation may be defined in part by what others say about you, it is also defined by what a brand itself says. If it’s appropriate and authentic for your company, identify a business leader who can publicly address the impacts of COVID-19 on your industry or customers.
  • Give back—On a similar note, give back to your community if you’re able to. A little bit of kindness can go a long way during these volatile times.

 

 

 

 

What to do Next?

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