In May, government officials in Utah traced over 40 cases of COVID-19 to one business: Built Brands, LLC, a multilevel marketing company that sells protein bars. Officials reported that Built Brands ignored COVID-19 safety guidelines and failed to implement procedures to protect against the virus. The company did not screen potentially sick employees or require masks or social distancing. As a result, infected employees reported to work and infected their colleagues. The outbreak was so severe that 48% of Built Brands’s employees tested positive for COVID-19.
On May 13, 2020, Juana Victoria Flores, a former employee of Built Brands, sued the company for not taking sufficient steps to protect against the spread of COVID-19 at work. The complaint outlines how Flores learned that several of her coworkers had been diagnosed with COVID-19. She contacted human resources about the issue and complained about the sanitation and poor ventilation at the Built Brands facility. A few days later, Flores contracted a cough, and within a week, she tested positive for COVID-19. The virus quickly spread to Flores’s daughter with Down syndrome, who was hospitalized for several weeks with the virus. Flores also infected her roommate.
On May 14, 2020, one day after Flores filed her lawsuit, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) opened an investigation of Built Brands. In all, the company now faces a sick and disgruntled workforce, a federal investigation, an employment lawsuit, and a ruined reputation.
Similar outbreaks have occurred in companies across the nation. In June, Oregon released a list of 19 workplace outbreaks in the state. Even Amazon had a significant outbreak in a New York warehouse.
As with Built Brands, the rise in workplace infections has been followed by litigation. More than 3,400 lawsuits related to COVID-19 have been filed nationwide so far. Todd Maisch, head of the Illinois Chamber of Commerce, called the potential legal liability for COVID-19 the “third crisis” facing the nation. “The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”
COVID-19 and Employers
How can businesses avoid becoming the next Built Brands? The law requires employers to provide a safe working environment for their employees. But how can employers do that with COVID-19 spiking throughout the nation? And how can employers manage their liability risk if an outbreak occurs?
The answer is not simple. COVID-19 is presenting businesses with unprecedented challenges. But with a thoughtful approach and the right tools, a company can reduce the risk of infection and litigation.
Staying Current with Federal, State, and Local Guidelines.
The first and most important step is to follow the safety guidelines outlined by governmental authorities. There are two main reasons, however, why this is particularly difficult.
First, businesses must take multiple lawyers of laws into account. On a federal level, the Centers for Disease Control and Prevention (CDC), Equal Employment Opportunity Commission (EEOC), and OSHA all have important information and guidelines for employers to follow regarding COVID-19. States have their own standards, which vary widely across the nation. Some states require training, others require masks, and others require screening procedures. To make matters more complicated, many counties, and even some cities, have taken the initiative to issue separate guidance. A business in one county may need to post signage about safety measures while another business just across the county line may not. The result is that businesses with multiple locations may need to track dozens of sources to keep up to date with the applicable rules and guidelines.
Second; government authorities update their guidance on a regular basis, sometimes daily. It’s possible that a company could spend thousands of dollars on a readiness assessment and return-to-work policies, only for both documents—and the recommendations that they contain–to be out of date within the week. The CDC routinely adjusts the symptoms for COVID-19, as do states. For example, the CDC designates a fever of 100.4° or above as a symptom of COVID-19, whereas Texas recently lowered its standard for a fever to a temperature of 100°. These shifting standards are a nightmare for general counsels. As the infections ebb and flow across the nation, different states and municipalities move from open for business, to closed for business, to somewhere in between—all while issuing or removing rules and restrictions along the way.
These issues make keeping up with the law nearly impossible. At Wilson Sonsini and SixFifty, we addressed these problems by 1) automating the assessments and policies that a company needs to return to work and 2) pushing updates through our platform. Other firms have taken similar measures. In the end, it’s difficult to see how law firms can distribute the necessary expertise efficiently without a technology assist—the traditional delivery model for law firms is not suited for such a fast-changing legal environment. In-house counsel should look for technology solutions to stay up to date.
Distributing Policies and Collecting Acknowledgements and Consents.
Once a business understands what is required, leadership must communicate the plan to employees through a policy. Employees need to acknowledge that they received, read, and understood the policy before being allowed to return to work. This is important to protect the company from liability in case an employee disobeys the policy and infects someone in the office.
Businesses also need to gather the necessary consent to collect, use, and share personal information from employees. It’s important that businesses track the health of their workforce, and in many circumstances, gathering consent is necessary.
Putting a Plan into Action.
Once businesses have a plan, they need the tools to carry it out. The market is flush with products that help companies take care of the logistical burden of returning to work. Domo, for example, offers a suite of return-to-work services, from temperature checks to tracking the location of employees in the office. Sequoia Consulting offers tools to track the health of employees and to manage which employees come into the office on which days. At SixFifty, we developed a questionnaire system to screen employees for COVID-19 before coming into the workplace. These different offerings will work better for different companies depending on the size and needs of the business.
Conclusion
The law is designed so that the same steps that keep employees safe and healthy also help businesses avoid liability—a concept that Built Brands missed. Mark Cuban and others have observed that the way companies respond to coronavirus will define their “brand for decades.” The investment to protect employees from the virus is a smart move all around.
About the Author
Kimball Dean Parker is the president of SixFifty, Wilson Sonsini Goodrich & Rosati’s legal technology subsidiary. Contact him on Twitter @kimballdparker.