Almost a year has passed since the Midwest began feeling the impact of the 2019 novel coronavirus. In the second week of March 2020, dozens of states and local governments began enacting shelter-in-place orders and other restrictive measures. Flash forward two months and students, teachers and parents alike faced horrible disappointment as commencement ceremonies were postponed or cancelled. Millions of cases and hundreds of thousands of deaths have been reported nationwide. While there is no clear end to the COVID crisis in sight, these trying times have already provided much in the way of lessons learned.
Employers have been on the frontline of the pandemic, constantly working to understand and implement new laws and regulations whilst keeping their businesses afloat. Classifying workers as essential or non-essential; setting up the workspace to be socially distant; determining leave eligibility for workers with the virus or those with preexisting conditions, children home from school, or a lack of public transportation. And all of this being done in the shadow of lurking agency enforcement actions. So, as the country transitions from deals with the resurgence and begins to plan ahead for better times, what can employers take away from the past year? This blog series addresses four principle takeaways from the COVID pandemic and forward-looking strategies for employers.
- So, you have a confirmed case…
The problem: Very few businesses were as proactive in responding to the coronavirus pandemic as they could or should have been. Despite growing concern over the situation in China and Italy in the weeks before it hit stateside, most US employers did not utilize the lag period to draft and implement a COVID crisis communication plan. Those which did were able to respond in a timely manner when state and local orders were released, and their employees likely felt more secure in the process. Much more common, though, were companies in a state of panic and workers left to wonder what would happen next.
What’s been done: Response teams were formed, processes put in place, and communications issued in a matter of days. Issues were discovered and changes made. Companies and employees alike settled into their “new normal.” Then, as the virus count continued to climb, employers were faced with the next question: how do we handle a confirmed case in our workforce? Largely through trial and error, most companies have now settled on a method for communicating the diagnosis and following quarantine guidance for those impacted. But are there better ways of communicating this concerning news? And if it gets leaked outside your workforce, how should you handle a COVID scandal?
Moving forward: If your company has not already done so, it is time to develop and implement a pandemic response plan. If you created one at the beginning of the pandemic, it may be time to review and update based on what actually transpired. Now that we’ve gone through the process once, it is reasonable to assume that future outbreaks—even of more well-known illnesses like the flu—could result in similar protective measures. Now is the time to start planning for those future crises.
Create a team with tasks specifically assigned to its members. For example: HR will handle all reports of COVID exposure (remembering to maintain medical information separately from employees’ general files); the CEO is the face of the company for all public communications if there is a confirmed case; maintenance is tasked with certain additional cleaning responsibilities, etc.. If you don’t have a designated public relations person or team, consider carefully: 1) who should be in charge of communicating with employees and the public; 2) timing and frequency of communication; and 3) the platform(s) through which to communicate. The Association of Corporate Counsel suggests using the mnemonic “ACCESS”: Be authentic; be credible; be committed; be empathetic; and keep it simple and speedy. The key here is clarity—employees should know what to do and who to turn to in every situation.
Should your company have an employee test positive for coronavirus, there are several key actions to take, based on agency guidance and business best practices. First, send the positive employee home to begin quarantining and notify in as confidential a manner as possible all impacted employees and third parties so they can begin quarantine measures as appropriate. Remember the 6:15:48 rule: COVID-19 transfer is most likely when someone is within 6 feet of the infected person for 15 minutes or more during the 48 hours before the carrier began experiencing symptoms or any time thereafter. Consider drafting a basic “Notice of Positive Test” form to keep these notifications discreet and timely. Clean the infected employee’s workspace and minimize other employees’ exposure to the area. Determine if state or local public health authorities need to be notified and whether the positive test must be recorded on your OSHA 300 or other work-related illness log, but otherwise keep the information to a need-to-know basis.
How should you address the issue if the public finds out? First, remember, under the National Labor Relations Act, you generally cannot forbid your employees from posting on social media related to the terms and conditions of employment, and a positive COVID test in the workforce would likely fall under the Act’s protection. So, your leak may very well come from a concerned or disgruntled employee. How will you address this? Be careful about disciplining this employee to avoid any implication of retaliation under the NLRA. If the employee is raising legitimate safety concerns, how can you address those? Is there an accommodation which might be made? What you can (and should) do is have a policy in place which directs all employees to refer media inquiries to designated management or PR employees. That way, even if Bob from accounting is the one who leaked the story via his Facebook post, he is not the one speaking with Channel 5 about the situation.
The message provided to the media should be concise and well-planned. This is not the time to recite trite but true “unprecedented times” fluff—we all know these are unprecedented times and community spread is on the rise and only so much can be done. Instead, focus on what your company has done and how it will affirmatively respond to this positive case: impacted employees and third parties have been notified; the employee’s area has been cordoned off for the next ten days; the company is committed to testing all potentially-affected employees to avoid further transmission, etc.. These are the facts your community is looking for, so get straight to the point. Then, be sure to actually follow through on what you’ve promised and keep a record of that follow-through in case of future exposures, media inquiries, or agency investigations. Not only is a failure to follow safety measures bad press waiting to happen, it may very well subject you to investigation and citation by agencies like OSHA.
The COVID crisis has been actively impacting Americans for almost a year at this point. As communities ease restrictions and businesses bring employees back, it is very tempting to repress the memories of the stress and uncertainty which plagued 2020. However, that would be a missed opportunity. Employers should take this time to reflect on the good, the bad and the ugly which came from the pandemic and apply those lessons as they move forward, both to the current crisis, and more generally to future business interruptions.
As you move forward in 2021, put an emphasis on people and planning. Reach out to the experienced employment attorneys in Goosmann Law Firm’s Sioux Falls, Sioux City, and Omaha offices for guidance today.