Bringing workers back amid pandemic requires planning, strict safety protocols

As areas of the U.S. begin to report lower numbers of COVID-19 deaths and transmissions, many employers that had been shut down are beginning to bring employees back into the workplace — a move fraught with safety and liability implications. 

With lags in COVID-19 testing, ever-changing symptom screening checklists and the challenges of contact tracing, employers eager to get some of their workers back into the workplace face myriad uncertainties and need well-thought-out plans to deal with symptomatic or COVID-19-positive workers, as well as protocols to ensure employees follow the new policies and commit to working as safely as possible, experts say. 

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“You have to provide clear messaging and let (workers) know that policies and procedures are being developed to address the risks as we understand them today and the prevention measures,” said Tim Davidson, Franklin, Tennessee-based senior consultant and health care thought leader at Aon Risk Solutions. 

The U.S. Centers for Disease Control and Prevention has released guidance for employers on social distancing, personal protective equipment, cleaning protocols and, most recently, contact tracing protocols to help companies identify potential workplace exposures.

But employers need to develop their own plans for identifying workers with symptoms or potential exposures — particularly in areas of the country still experiencing significant delays between COVID-19 testing and the release of results, said Dr. David Zieg, Denver-based partner and clinical services leader at Mercer Inc.

“Employers don’t have medical expertise or epidemiology experts” and need to ask employees who have been exposed to someone who tested positive for COVID-19 or exhibiting symptoms the question, “Were you around anybody for 15 minutes or more?” he said. “Then have them isolate. Just stick with the guidance and keep it simple.” 

Employers who have the capacity to take a more conservative approach and quarantine any worker who had contact with a symptomatic or positive employee may want to do so to mitigate the spread, Dr. Zieg said. 

To identify potential cases, it’s important for employers to create a specific methodology for onsite screening of coronavirus symptoms, Mr. Davidson said. The screening should include a battery of questions — preferably yes/no questions that take screeners down a decision tree to determine whether the employee needs to quarantine at home, he said. 

“Have defined, closed-end questions that don’t leave a lot of wiggle room and gray area for a person to give you a nebulous answer,” he said. “When you’re doing contact tracing, your yes/no answers drive you to the next step of the investigation.”

Employers also should have a plan on how to have an employee who was exposed or symptomatic tested, Dr. Zieg said. 

“If you leave it to the employee to go find their own test via either public health office or local urgent care, what you’re leading into is potential delays, and time is of the essence,” he said. “You want to identify folks as quickly as possible. Have a plan for testing.”

Such plans may include reaching out to local urgent care centers about test availability and how to put employees on a list when a suspected case arises. For larger employers, contracting with testing vendors or a pharmacy to provide testing may be an option. While symptomatic employees’ tests would be covered under group health plans, broad screening to identify risks would not, Dr. Zieg said.

After a worker has been identified as symptomatic or potentially exposed, he recommends that the employer interview the employee to determine anyone who may have had close contact with that worker in recent days. Those workers should be contacted and notified that they may have been exposed to a person with coronavirus — without identifying the worker — and advised to quarantine and test, he said. 

However, employers need to be sure when they are interviewing workers that they’re being respectful of their personal activities, said Arlene Switzer Steinfeld, senior counsel in the Dallas office of Dykema Gossett PLLC. 

For example, if an employee was out at a bar with a friend who then tested positive, the employer may ask that employee to self-quarantine and to get tested, but should “be very careful to keep any issues that reveal personal activities out of the personnel decision-making,” she said.

“When you’re starting to do contact tracing, keep any information about that separate from the personnel files,” Ms. Steinfeld said. “Don’t use that information in any way to affect the terms and conditions of employment.”

Even with all precautions and effective contact tracing, COVID-19 exposures will happen, and employers need to balance their need to reopen with the potential negative reputational risk if something goes wrong, said Christian Schiavone, Chicago-based director of professional services for risk solutions at Origami Risk LLC.

“There’s really an awareness that you want the folks that you employ to be as safe as possible,” he said. “But you also want to make sure your reputation, which is so hard to rebuild, is not put at risk by making a short-sighted decision.”

Acknowledging the risks

In addition to the challenges of screening for symptoms and testing, employers need to be concerned about the liability issue of workers coming down with COVID-19 after returning to the workplace because it’s not “always 100% clear whether or not” businesses have taken all the steps necessary to protect their workers from COVID-19, said Matt Zender, Las Vegas-based senior vice president of workers compensation strategy at AmTrust Financial Services Inc. 

While experts generally agree that asking employees to sign waivers to attempt to limit liability for the employer is unlikely to hold up in court and may hurt morale, having workers sign a written acknowledgement of the risks of COVID-19 and their agreement to follow the company’s prevention strategies is a good idea, they say. 

A signed agreement is essentially a form of social contract acknowledging that “both sides have obligations and we’re going to ask you to comply,” said David Sherwyn, Itasca, New York-based law professor at the Cornell University School of Hotel Administration.

For instance, the acknowledgement can explain that the employer is going to follow U.S. Centers for Disease Control and Prevention guidelines and take all necessary precautions to prevent the spread of COVID-19 at work, but also ask employees to comply with mandates on wearing masks, social distancing and not coming to work if they have symptoms or believe they were exposed to somebody with COVID-19, he said. 

“If done properly, (these acknowledgements) can help shape the narrative about the employees’ view of how you’re protecting them,” Mr. Zender said. “Employers who try to think about this as a way to protect themselves from being sued are missing the point. It’s a way to protect employees from being exposed to the extent that they can possibly control.”

Employees who refuse to sign a waiver of their company’s liability may have grounds to challenge their employer, but those who refuse to sign an acknowledgement of new office protocols based on federal and state guidance to protect others and themselves from COVID-19 may be justifiably eliminated from the job site, said Susan Bickley, chair of the Houston office of Blank Rome LLP.

“If it’s an acknowledgement of, ‘Here are the protocols we have in place, please sign with respect to the fact that you’ve seen the information and agree to comply,’” she said. “If you have someone who is affirmatively stating that they will not agree to them — I think that’s grounds for not allowing them into your workplace.” 

These acknowledgments are also helpful when workers want to return to the office or resume business travel but are not being required to as part of their job, said Susan Gross Sholinsky, New York-based member of Epstein Becker Green P.C.

“The purpose of that really is to show that the employer … is taking as many precautions as they can to ensure that employees are following the protocols if they come into the office,” she said. “It also certainly avoids the argument that somebody was unnecessarily made to come into the office.”