Organizations might leave lockdown behind, but not liability - HR and legal questions around COVID-19 re-opening

Profile picture for user catheverett By Cath Everett May 6, 2020
While the talk may be of emerging from lockdown, workplace responsibilities will remain subject to constraints and questions of liability.

Governments around the world are starting to ease off, or preparing to ease off, of their COVID-19 lockdowns. The UK government plans to announce national guidelines and a three-phase roadmap this Sunday (10 May), all of which are currently out for consultation with trade unions and business leaders.  In the US, meanwhile, President Trump announced his ‘Opening up America Again’ strategy as long ago as 16 April.

The question for most employers now is will be how to reopen their operations in a safe and sustainable way without putting staff at risk. This week saw Salesforce introduce its own dedicated tech offering to address this issue while ServiceNow has just announced its own plans on this front - and other vendors will follow - but what’s the advice from legislators?

Most countries - if not some individual US states! - are approaching re-opening for business (and life!) via a phased approach once the instances of new COVID-19 cases begin to fall and testing for healthcare workers becomes suitably widespread. It’s also suggested that employers develop policies on everything from social distancing and temperature checks to hygiene and business travel.

The most specific guidelines to help in this regard come from the US federal Occupational Health and Safety Administration (OSHA) in the shape of its ‘Guidance on Preparing Workplaces for COVID-19’. But there is also a myriad of evolving requirements in the form of parallel state and local authority health and safety orders, which often overlap with regulations elsewhere.

Not only is this lack of coordination confusing for employers though, says Kenneth Silverman, a partner at US law firm Olshan Frome Wolosky, which is a member of the Globalaw international legal network:

[Current guidance at federal, state and local level] typically sets out general standards, but does not give a comprehensive set of concrete steps that businesses must take. Even the expanded CDC [US Centers for Disease Control] guidance said to be under consideration by the White House is not mandatory. Ultimately, US employers will have to tailor their preparations to the specific circumstances of their business operations and workplace.

While this situation may be “understandable given the wide variety of workplace settings in the economy”, Silverman adds, it also means that:

Employers will thus have to make decisions about how to implement these recommendations in good faith.

DJ Paoni, President of SAP North America agrees:

In the US, the biggest challenge in getting the transition right is navigating the varied regulations mandated by each state. For example, as employees return to work, some states require temperature tests, and social distancing requirements differ from state-to-state and even country-to-country. Ensuring compliance in this case cannot be a one-size-fits-all approach across all of our offices globally, or regionally in the US and Canada.

A conservative approach to exiting from lockdown

In a bid to manage this complex situation, SAP has created a pandemic taskforce alongside its longstanding crisis management team. The taskforce includes medical and HR professionals as well as representatives from its facilities management, communications, legal, security, health and safety and government relations teams who, Paoni says, are:

Working closely with our leadership and health organizations like the CDC to identify and develop a consistent process for responding to the pandemic, including a plan for office re-openings.

While the company has so far officially closed all of its offices until 1 June and is no longer sanctioning any work-related travel, re-opening them is expected to take place in a controlled manner “over the course of the year” rather than in one fell swoop, with staff being encouraged to continue working from home wherever possible – despite some states’ plans to lift ‘Stay at Home’ orders over the coming weeks. Paoni explains the rationale:

While we continue to monitor state and local guidelines, our employees’ health remains our first priority and, as such, we are being conservative with our approach. North America leadership, in close alignment with our crisis team, are taking several factors into consideration as we develop a phased approach to ensure the safe re-opening of our facilities. We are continuing to keep our employees regularly updated at the regional and local levels as we cement our re-opening plans.

As to what this re-opening will look like, it will involve “only a reduced or staggered number of employees” being allowed to work at any single SAP office at the same time. These employees will be primarily those who “work in business-critical functions that need to be conducted onsite”. Other staff that could also be included on the list over time are those who “face extreme productivity losses or have other extreme challenges while working from home”.

And such caution would appear justified, not least in light of an employer’s duty of care. According to Silverman, this duty of care means:

An employer must maintain workplace safety, respect employees’ rights and, and strive to do so in a manner that will best protect the employer from liability.

While the definition is similar in British law, UK lawyer Michael Hatchwell, a partner at Child & Child, which is also a member of the Globalaw network, is concerned that the concept of ‘safety’ is hard to define when so much around the Covid-19 virus remains a mystery, including if and how immunity is built up:

As an employer, how do you provide a safe work environment when you know a disease is spread by proximity of humans and you know that older people are more vulnerable than younger? Are hand sanitisers, masks, and the deep cleaning of offices and toilets sufficient? And how can modern offices, often open-plan and packed, operating without modern air circulation systems, operate? Can any modern office be a safe working space?

The issue of liability

Then there is the issue of employees travelling to and from work safely. Hatchwell explains:

Even if you provide a safe working environment, how do your employees get to it? There’s little point, if on the way to work and back, employees are putting their health at risk on buses, trains and the underground. Finally, tests are also not readily available, so how do you go about protecting employees from someone bringing the virus into the office?

But as employers grapple with such thorny issues, they also need to be aware that liability for failing to provide a safe working environment can have serious repercussions. As Hatchwell says:

If any employee dies due to a lack of safety in the working environment, this can have potentially criminal consequences for directors, which can include fines and sentences.

Such uncertainty has led to the US Chamber of Commerce along with various conservative groups to lobby lawmakers to provide employers with blanket legal immunity if frontline workers believe they become sick on the job, or if families claim a loved one has died after catching Covid-10 at work.

While they are unlikely to get their way due, among other factors, to the substantial protections afforded by the current regulatory regime, the issue is one that concerns employers elsewhere too. As Steve Arnold, Chief Executive of absence management software provider e-days, says:

There needs to be very clear guidance or companies are not going to know what to do and where they stand from a legal point of view. If it’s a free-for-all and each employer does it differently, it puts us all at risk. So some inevitably won’t want staff to return as they won’t be sure if they’re liable for claims if people get sick, die or pass it onto others.

As a result, Arnold likewise believes that legal immunity will be required to protect employers if something goes wrong, although he admits that such a proposition “opens up a whole can of worms”, not least as to whether employees would actually be prepared to sign waivers repudiating their right to make claims if they do go back to work. As a result, he says:

It’s vital that companies have a very clear list of rules to follow, are able to demonstrate they’re following them and, if they do, they shouldn’t be open to liability. Otherwise it’s likely they’ll want to sue the government for not giving them good enough advice.

Against that backdrop, Part 2 of this article will lay out expert advice as to what employers can do to handle the transition out of lockdown effectively.