McALLEN — While the business community in the Rio Grande Valley grapples with reduced revenue and a sea of new regulations because of the pandemic, a new threat has reared its head on the horizon: litigation.
The Wall Street Journal reported July 30 that families of COVID-19 victims had filed the first round of lawsuits against companies over worker deaths, while labor and employment law firm Fisher Phillips reports 451 employee vs. employer suits resulting from the pandemic in the U.S., 35 of which are in Texas.
So far, Texas ranks fifth in the nation for the number of workplace COVID-19 suits on Fisher Phillip’s list.
The McAllen Chamber of Commerce addressed that phenomenon in Thursday’s McTalks, which focused on operating a business during the pandemic without being sued for it.
“This is a very hot topic right now,” Sally Fraustro-Guerra said during the discussion.
Susan Sullivan, partner at law firm Atlas, Hall & Rodriguez in McAllen, led the discussion. For the most part, Sullivan’s philosophy was simple: Do your best to protect your employees from COVID-19 and, to the greatest extent possible, do what’s right by them.
“The goal for community leaders is really having a safe and productive workplace,” she said.
Sullivan recommended employers consult guidelines from the CDC, OSHA, EOC and the Department of Labor frequently to keep up to date with pandemic policies. She recommended one person at the business be in charge of doing that.
“I would recommend that you have someone in your office that can be checking these websites regularly,” she said.
That person, Sullivan said, should likely also be the company’s “go-to person” for employees to report cases of COVID-19.
“Employees need to know exactly how to make these reports to you and it needs to be consistent,” she said. “That way you’ve got one person in charge and they can make sure all the procedures are followed with regard to that test.”
Sullivan said that COVID-19 is a reportable illness and OSHA regulated businesses will require employers to investigate the case. That investigation should include talking to the employee about how they think they got it, what they’ve been doing in and out of work, social gatherings they’ve been to and what contact they had with other employees.
“Obviously COVID-19 might not be work-related if your employee does not have contact with the general public or if they have a family member that is not a coworker that has maybe been diagnosed,” she said.
If the case does appear to be connected to the workplace, Sullivan says employers need to get that person out of the workplace. She said some entities require a two-week isolation period before the employees return, while others require the employee to test negative for the coronavirus twice.
Meanwhile, Sullivan said, the business should take more hygienic steps.
“You’re going to want to clean the office. You’re going to want to make sure that any surfaces or areas where the employee may have been working are cleaned and disinfected,” she said.
Sullivan also recommended reiterating hygienic practices after a positive case that should be in place constantly, including social distancing, hand-washing, continuing to refrain from non-essential travel, limiting shared items and using personal protective equipment when applicable.
If PPE is required, Sullivan said, it should be provided by the business.
If an employee tests positive the business should also let other employees know, Sullivan said.
“You cannot share with them who it was, but you need to share with them — you have to share with them — that there was a positive finding in the workplace,” she said.
Addressing screening employees for the virus, Sullivan said, sometimes proves challenging due to the variety of symptoms, many of which can be mild and commonplace like fatigue or a headache.
She said the CDC recommends asking about recent symptoms rather than just symptoms in general.
“Focus on whether or not these symptoms are something new,” she said.
Sullivan also discussed some of the hazier parts of operating during a pandemic, including employees who are reluctant to return to work due to the health risk of being in public.
“I think with employers this is probably one of the main concerns,” she said.
Sullivan said the general duty clause requires employers to furnish a workplace safe from hazards that could cause death or serious harm. The risk must pose imminent danger of sickness or fatality.
“Basically, it’s whether or not there are conditions at the workplace that are so extreme that I can reasonably expect that it’s going to cause me harm,” she said.
Working in a medical setting with no PPE, Sullivan said, would be an example of an immediate threat. She said that a generalized fear wouldn’t make the cut.
Despite that, Sullivan recommended employers take employees’ concerns about workplace policies related to the pandemic or requests to work remotely seriously. If it’s feasible, there’s no reason not to.
“You might not have to accommodate your employee and let them work remotely, but if you can, allow them to do so,” she said.
Flexibility should be employed in other areas too, Sullivan said. Doctors’ offices are busy and behind on paperwork, and if an employee can’t provide proof of a positive test, it’s probably best to take them at their word. If someone says they can’t wear a facemask, a requirement in Hidalgo County, there may be a feasible workaround, like working remotely or in an isolated part of the office.
“Work with the employee to identify what could be a reasonable accommodation,” Sullivan said.
Doing what’s in the employees’ best interest isn’t always the right course legally, according to Sullivan. For example, she said, employers can’t tell older employees to stay home on account of age discrimination rules.
They can, however, give them the option to stay home.
“You can provide more flexibility to the older workers, even if that flexibility means that younger workers are treated less favorably in comparison,” Sullivan said
Throughout the discussion, Sullivan emphasized that if a case went to court, optics would be important.
In part, she recommended against requiring employees to sign a waiver agreement when coming back to the workplace.
“If you’re sued and you have to go to trial, they just don’t look good,” she said. “People don’t like it, they feel like you’re taking advantage of an employee. In addition to that, they don’t really solve a lot of problems because they don’t really solve a lot of problems.”
Often, Sullivan said, the more pandemic flexibility and support employees are given, the better their employer will be perceived.
Sick leave and mental health support should be considerations, she said, along with hazard pay.
“I say don’t be like Amazon, because Amazon doesn’t provide hazard pay and their CEO is a quadrillionaire, so that doesn’t look good. If you’re a quadrillionaire, you should give your people hazard pay,” she said.
Throughout, Sullivan recommended keeping paperwork accurate and thorough for pandemic-related business. Policies should be reviewed, and when appropriate, changed in light of the pandemic. Insurance should be paid and up to date, and when a positive case in the workforce is investigated, those steps should be recorded.
“Documentation is key,” Sullivan said.