Reduce Risks When Returning to In-Person Work

How to limit Covid-19 liability in the transition to the post-pandemic workplace.

Covid-19 has underscored the vital importance of preparation, resilience, and adaptability for businesses striving to minimize risk and liability.

Throughout the pandemic, companies have had to evolve and adapt to perpetually changing medical advice and government requirements. Now, as much of the economy is reopening, businesses must remain both flexible and vigilant in their efforts to protect the health and safety of their employees. Tactics that worked six months ago may no longer be considered best practice, so these companies need to be monitoring public health guidance. They should also be conducting ongoing, comprehensive reviews of the effectiveness of internal programs designed to assess the well-being of employees and prevent the spread of the virus.

Return-to-work plans that focus too much on the question of “Can we?”—without enough attention to the question of “Should we?”—can expose companies to unnecessary risk. Even businesses that successfully navigated the uncertainty of 2020 may need to shift their efforts in the areas of employee health, regulatory compliance, and data privacy. Clear communication with employees at all levels is crucial to retaining their trust and reinforcing best practices across the workforce, which helps minimize workplace liability and protect against both known and emerging risks related to virus exposure.

The Current Liability Landscape

Even as more and more organizations resume face-to-face contact among staff, customers, and other stakeholders, uncertainty regarding the pandemic persists. As businesses have begun to reopen, many have gained insights and resources for future iterations of their return-to-work plans. But the public health situation remains fluid, so where we stand now feels more like shifting sands than solid ground.

Most businesses have made concerted efforts to ensure workplace safety, yet legal issues are widespread. A Covid-19 legal complaint tracker from law firm Hunton Andrews Kurth received more than 7,000 complaints through the end of 2020. More than 1,200 of those involved labor and employment issues such as unlawful termination, work conditions, wages, and discrimination.

President Biden directed the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard for Covid-19 workplace safety. This guidance will help bring further clarity around issues like masks and ventilation, but it will also create new standards that businesses will need to implement, and it could impose fines for noncompliance.

Legislative efforts to address these issues are also under way at multiple levels. The U.S. Congress is expected to continue discussions begun in 2020 about federal standards for Covid-19–related corporate liability, including gross negligence standards, a potential corporate liability shield, and definitions around what events and issues count as being related to the virus. Meanwhile, several states—including Michigan, Georgia, Mississippi, Nevada, and Tennessee—have taken their own steps toward liability protections for employers. Some explicitly require businesses to comply with all federal, state, and local statutes related to Covid-19, while other states have moved to expand workers’ compensation protections. Laws pertaining to Covid-19 liability vary significantly by state, further complicating risk management for employers operating in multiple states.

Adhering to legal requirements, guidance from public health authorities, and best practices set by industry groups is complex and challenging. Nevertheless, doing so should be just a starting point.

Crisis Management Best Practices

Every company should have already had a business continuity and crisis response plan in place before the pandemic hit. This is base-layer protection, as is monitoring compliance with the plan.

During the Covid crisis, the specifics of mitigation efforts have varied based on industry, geographic location, and company size, among other variables. Still, the core elements remain largely consistent. These include:

Depending on the situation, a crisis management team might activate different response teams consisting of individuals with specific responsibilities and skillsets. For example, the team members needed to properly respond to a public health crisis may be different from those needed for a supply-chain disruption. However, the organization and capabilities of these teams should be similar regardless of the nature of the event. Each team should have clear roles and responsibilities for members; formal processes for incident assessment and action planning; and a clear communication plan within the team, with other critical response teams, and across the company as a whole.

During the early months of the pandemic, companies that had already established plans for crisis response and business continuity were at an advantage. These businesses promptly activated crisis management teams of critical stakeholders to ensure the organization implemented the latest federal, state, and local guidance at each corporate site.

Now, as corporate leaders evaluate whether crisis management teams are prepared to effectively deal with concerns around the post-Covid return to work, they should consider:

Going forward, the roles of crisis management teams may need to be expanded to include continuous monitoring of Covid-related risks and implementation of additional risk-mitigation measures as new exposures emerge and new guidance is issued. Many leading companies have refreshed their response plans multiple times over the past year, with the goals of remaining agile and continuing to protect their people and their business.

It’s also worth noting that public health spending is likely to increase under the Biden administration. Public health programs have recently accounted for only 3 percent of healthcare expenditures in the United States, and spending by the Centers for Disease Control and Prevention (CDC), under which many local and state programs operate, was just 0.6 percent of spending by the U.S. Department of Health and Human Services (HHS) in 2020. The pandemic’s devastating effects have highlighted the importance of robust resources for public health entities, and businesses should be prepared to quickly implement any new requirements.

Ensuring Workplace Safety and Minimizing Risk

Risk mitigation and liability protection efforts will never be completed; these are continuing tasks, and effectively sustaining them requires constant work. Once companies have re-evaluated their plans for monitoring return-to-work risks, they should assess the efficacy of those efforts and identify program enhancements as appropriate.

At a minimum, the evaluation of return-to-work decisions should always address three basic questions:

1. Can we do it?  Is physical access possible, or will it be restricted by government or landlord policies? Will supporting infrastructures be available (e.g., food, hygiene, etc.)?

2. Should we do it?  Is it safe for staff to commute to and occupy a given work site? Are there additional government requirements to address, such as the required use of personal protective equipment (PPE) or upgraded ventilation?

3. How will we do it?  Who within the company makes the final decision to open a work site, and what are the steps on the execution checklist that business units will need to follow? How will the organization ensure it’s complying with all privacy and health protection guidance?

Many organizations that returned to work earlier this year, whether in full or in part, have subsequently had to assess whether to shift back to remote work or make other adjustments as infection rates have fluctuated and new virus mutations have spread. A company’s infectious disease response plan should include detailed checklists for every business unit and support function at each stage of returning to a work site. Some of these actions will need to be taken repeatedly, since progress against the public health crisis is not linear.

In addition, a corporate crisis management team should carefully evaluate each new resource before implementing it. For example, apps and sensors for contact tracing and exposure notification have proliferated, but these come with data privacy and liability concerns. Companies using, or considering using, apps or sensors for contact tracing should ask:

Employees need to be confident they are protected, and that includes privacy protections. Clear, consistent communication is key to building that confidence. Although the company’s Covid-19 response might require frequent changes in plans, the crisis management team needs to communicate those shifts strategically to minimize disruption, keep people engaged, and encourage ongoing adherence to Covid-related corporate policies.

The Road Ahead

Businesses that engage in intentional, thoughtful return-to-work planning are setting themselves up to emerge stronger from the pandemic and to thrive in the months and years ahead.

With a crisis management team and response plan in place, a company can effectively monitor and respond to critical guidance and updates, as well as conduct ongoing assessments and initiate program enhancements as needed. These practices help set up the organization to better anticipate and mitigate continuing, emerging, and unforeseen risks—both now and in the months and years ahead.

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Brian Collins is the chief security officer (CSO) and managing director for BDO. You can reach him at bccollins@bdo.com.

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