Last year the world, our families, and all organizational leaders had to react and respond to the unprecedented challenges and disruption caused by the COVID-19 Pandemic. While employers did their best to act quickly and execute on the recommended health and safety protocols, we may now be witnessing a new wave of issues – lawsuits filed by employees who do not feel their employers “did enough” to keep them safe and other COVID-related claims and/or litigation.

Now, it is time to look back and reflect on all that was done.  Employers should acknowledge the decisions they made and remember the details of the things that happened during 2020, including all the policies and protocols they implemented.  Having a clear picture of how they managed through the Pandemic will be vital if an employee decides to take action against them.

“No one wants to think about being sued, but this is the reality we face in this post-Pandemic time” explains Stella Skaljac, Founder of ImagineHR, a human resource consulting practice dedicated to keeping employers out of legal troubles by helping them be proactive.  As an employment attorney, Skaljac knows how crucial it is to “stay ahead of the game” and make sure an employer’s internal COVID documentation is organized and reflective of “good faith and due diligence” on the part of the employer.  It is important for many reasons, not the least being able to respond to the legal claims that have already begun.

According to the international law firm of Littler Mendelson, on April 23, 2021:

Since March 12, 2020, there have been 2,314 lawsuits (including 186 class actions) filed against employers due to alleged labor and employment violations related to the coronavirus.  States with the most filings include: California (581); New Jersey (274); Florida (181); New York (169); and Ohio (148).

While many of the claims noted by Littler Mendelson are in healthcare, others are in distribution, manufacturing, and construction.  Employees claim that their employers did not do enough to maintain their safety.  In addition, they claim negligence and reckless disregard in relation to the action (or inaction) of their employers to manage COVID-19 in the workplace.

In addition, a recent article by All Things Work by HR Magazine also stated:

Worries over workplace safety in the COVID-19 era, as well as concerns about the impacts of business closings, plant shutdowns, and mandatory stay-at-home orders, spawned more than 2,000 lawsuits over the past 14 months according to Atlanta-based employment law firm Fisher Phillips.

Proactive Litigation Preparation – What Employers Can Do Now

In light of the recent news and research pointing to a growing trajectory of COVID-related lawsuits, Excelas was determined to help.  The team at Excelas is now expanding their solutions from strictly healthcare to other industries.  Their innovative solution – The Corporate COVID-19 Timeline – will help any employer proactively mitigate against COVID-related claims.

Based upon our research, it is clear that companies are struggling to document, organize and retain the proactive steps they took during the Pandemic to assure the health and safety of their employees and workplaces.  We have found that most employers took action or communicated with their teams, but unfortunately do not have this information organized or safeguarded.  If a member of the leadership team made a decision, updated a policy, reorganized a workspace, changed on-site employee schedules, sent an email, conducted safety training, where was the evidence maintained?  What happens if that individual is no longer in your employ when a claim is brought against your organization?

Our structured Timelines are an excellent way to document, preserve, organize, and present the actions your organization took to address workplace safety during the initial stages of COVID-19 outbreak in March 2020 to the present.  We have found that organizations that have taken the time to acquire all the relevant documentation are in the strongest position to defend themselves against COVID-related allegations.  Looking at the organization’s response retrospectively may seem daunting, but it is absolutely necessary to build a timeline of events and actions (from a risk mitigation perspective).  The more time that passes, the more difficult this essential process will be.

Continued Risks with Reopening and Concerns over Liability Shields

The complexity for employers will continue as offices start reopening and employees return to the workplace, at times with employee hesitance and reluctance.   All Things Work by HR Magazine  reinforced this point, stating:

As coronavirus vaccines become widely available, there is reason to hope that the workplace will soon return to normal.  But risks remain for employers.  Decisions concerning how and when a business reopens, who gets called back first, and how to protect employees after a return to the office will almost certainly spark new conflicts and lawsuits.

In the unfortunate situation that there is a COVID-related incident as your staff returns to work, the best way to protect your organization is to document, organize, preserve, and timeline the manner in which you prepared.  This is key not only to assure your workplace and workforce remain safe, but to effectively respond if there is a potential future issue or claim.

Although some states have enacted liability shields blocking COVID-related claims against employers, these laws do not prevent federal lawsuits.  Skaljac (as well as other employment attorneys) believe that “these laws may not be ironclad, and immunity laws will likely be challenged through crafty claims and litigation.”

Final Takeaway and Recommended Best Practices

To remain proactive and begin to build your defense, Excelas recommends that employers collect and organize facility and office policies and protocols associated with:

• Handwashing, Disinfecting, and PPE Usage
• Temperature-Taking
• Social Distancing
• Scheduling Adjustments
• Physical Changes to the Environment
• Visitor Entry Protocol
• Travel Restrictions
• Infection Control Standards
• Infection Surveillance
• Education and Communication
• Family First Coronavirus Response Act Leave
• Vaccination Policies
• Remote Work Policies
• Return to Work Plan and Rationale

After gathering all documentation (i.e. internal memos, policies, forms, etc.) associated with their Pandemic protocols, employers will then submit all company documents to Excelas to be organized and verified through a gap analysis.  To augment your company’s response documentation, Excelas has collected and chronologized the Federal and State COVID-related guidance that may be integrated into your Corporate COVID-19 Timeline.

This post-pandemic time is riddled with uncertainty and risk.  Be prepared to defend your case and protect your organization.  Getting started is easy, simply connect with us today!