Is returning to work mid-pandemic really “us vs. them”?

No Panacea for COVID-19 Liability Concerns for Employers and Their Staff

During the week of May 11, 2020, many Nevada businesses began taking preliminary steps to reopen following pervasive COVID-19 pandemic closures.  Like similarly situated entities throughout the country (and around the world), Nevada’s businesses are navigating a difficult, uncertain, and unprecedented climate as they strive to get back to work.  Governor Sisolak’s recent “Roadmap to Recovery for Nevada,” along with ever-changing governmental and administrative guidance, provide some direction for businesses, but it remains painfully apparent that much remains unknown.

The palpable stress associated with these “unknowns” is on display throughout the State, with businesses and their employees seeking to insulate themselves from liability associated with the novel Coronavirus.   In that vein, the week of May 11, 2020, saw reporting on businesses requiring employees to execute sweeping liability releases as a prerequisite to returning to work.  One prominent Southern Nevada restaurant chain, in particular, caught media attention for having its employee’s sign contracts waiving any and all legal rights they may have against the business “in returning to work amidst the coronavirus pandemic.”  While the business’s concern and intent with the release make sense, the implementation appears to have been problematic, eliciting lukewarm-to-negative reactions from the media and legal community.

The Uncertainty of Reopening

To analyze the implementation problem, it is instructive to first acknowledge the completely understandable stressors and legal concerns evoked by reopening during a pandemic.

For businesses, the rationale for seeking legal protection is clear.  After months of state-ordered closures, rampant layoffs and furloughs, hemorrhaging business, and other hardships, Nevada companies (small businesses, in particular), are in self-preservation mode.  They unsurprisingly want to minimize their liabilities, and inject some semblance of reassurance into the pervasive “unknowns” of getting back to work.  For some business owners, these concerns may be exacerbated by visions of stereotypical plaintiffs’ lawyers frothing at the mouth for the opportunity to send that first demand or file that first complaint regarding a COVID-19 outbreak in the workplace.  It makes sense that a business, already being forced into a reactive posture during the pandemic, would want to insulate itself by having its employees and contractors expressly assume the risk of returning to work before the virus is under control.  These concerns, while understandable, may not be best addressed through these kinds of releases.

For individual employees and contractors, unease about returning to work and navigating COVID-19 releases makes perfect sense.  They have, after all, weathered the same beats of the ongoing crisis, many of them fearing their employment security, doubting their ability to timely obtain unemployment benefits or leave under the CARES Act and amended FMLA, and remaining concerned for their personal health if they return to work.  A hardline release by an employee as a prerequisite for returning to work only compounds these concerns.  Individuals must weigh foregoing legal recourse as a condition for prospective employment.  They face an apparently serious legal document which emphasizes the possibility of becoming ill, and which presupposes the individual would seek to hold the business itself accountable.  Moreover, these individuals could be in the unenviable position of being an unsophisticated worker without the wherewithal or resources to consult with counsel regarding the necessity or effect of the business’s mandatory release.  These considerations are not part of the hedonistic calculus an individual would undertake before signing a legal document under ordinary circumstances; instead, they underscore the stressors of the pandemic and present the employee with a Catch-22.

Best-Laid Plans

Though the concerns on both sides are valid (and, of course, more varied and nuanced than these short paragraphs suggest), improperly implemented employee releases can be problematic for multiple reasons.

First, they presuppose a liability dispute between the business and the individual before reopening has even begun.

Second, they emphasize contracting COVID-19 and the consequences of illness over the efforts both the business and the individual are taking to comply with guidance and operate safely.

Third, depending on their actual form and content, they are plagued with enforceability issues, from encroaching on worker’s compensation jurisdiction/supplanting NV OSHA measures to impermissibly assuming unknown/unknowable risks.

Fourth, enforceability notwithstanding, they run the risk of discouraging individuals from seeking resources in the event they are sick, regardless of the business’s role in them contracting the virus.

Fifth, they inherently put the interests of the business and the individual at odds, when a safe and effective operation is the mutual goal and requires collaborative efforts.

These points are but some of many, but identify how the optics of poorly construed releases can cast a pall over the entire reopening process, and set the tone of the prospective employer-employee relationship.  Moreover, the dubious legal benefit of strongarm releases in the wake of a pandemic begs the question: “is it even worth it?”

As the consequences of the pandemic continue to develop, and as directives and guidance related to the pandemic continue to change and adapt, it becomes increasingly clear that there is no “one size fits all” solution for employers as they start to bring their employees back.  Because there is no panacea for reconciling Nevada business’s liability concerns and individuals’ security fears, the proper approach may be somewhere in the middle (as solutions so often are).

Transparent Disclosures, Combined Efforts, and Adherence to Guidance

While this article is no substitute for tailored legal advice (check out the lengthy disclaimer following the conclusion), there is some common ground for businesses and their employees to discuss logistics as they return to work.  Businesses should consider disclosing the guidance and directives under which they are reopening, as well as the particular policies and procedures the business is implementing to ensure compliance.  Employees should likewise confirm their understanding and appreciation of those disclosures, and maintain a dialogue with their employers regarding their ability to comply and any concerns they may have.

CDC Guidelines for Businesses and Individuals.  The Centers for Disease Control and Prevention (the “CDC”) has prepared and disseminated guidance related to COVID-19.  Specifically, the CDC has issued guidelines for individuals to identify symptoms, protect themselves from becoming sick, and to determine whether they are at heightened risk for developing complications related to the novel Coronavirus.  The CDC guidance, available at the CDC.Gov website, encourages everyone to, among other things:

• Wash their hands properly and often;
• Securely cover all coughs and sneezes;
• Put distance between themselves and others;
• Avoid any contact with sick people;
• Cover their mouths and nose with a cloth face cover when around others; and
• Thoroughly clean and disinfect frequently touched surfaces.

These CDC guidelines are regularly updated and are subject to change as the pandemic develops.  Reopening businesses should ensure that they are following the CDC guidelines, and ensure that their employees have reviewed, understand, and will follow those guidelines.  Employees should certify that they have reviewed and understood the guidelines and will follow them upon their return to the workplace.

Reopening Policies and Procedures.  In addition to disclosing and implementing the CDC’s guidelines in the workplace, businesses should develop their own internal policies and procedures to ensure compliance.  Businesses should disclose to employees how they are following governmental directives for reopening, and actively involve employees in their compliance efforts.  In addition to having employees confirm their receipt and understanding of the business’s policies, the business should implement specific, compliance-centered rules for the workplace.  For example, businesses could have employees agree to report any concerns they have regarding their own health and/or exposure to the virus before returning to work.  Moreover, businesses could ask that employees agree to disclose any concerns they have regarding compliance, which would empower the business to make reasonable changes and accommodations during the reopening process.  Because the business and its employees are aligned in wanting a safe, healthy return to normalcy, they should acknowledge their mutual roles in making that a reality.

Thoughtful First Steps

In sum, it makes practical sense for businesses to enact the proper policies and issue the proper disclosures to employees and contractors.  Those individuals, in turn, can certify their receipt and understanding of those disclosures, while retaining a direct line of communication with the business regarding compliance.  At the risk of sounding exceedingly informal, even though people do not necessarily share the same circumstances, we really are all in this together.  The health and safety of employees, patrons, and the community at large are paramount, and reopening requires everyone’s best efforts, diligence, and cooperation.  Transparency and agreement from the outset afford protections to businesses and their employees alike, and collaboration will afford the best opportunity for a successful, and risk-averse, reopening.

Before businesses risk implementing tone-deaf releases (and invariably skewing their relationships with employees and compromising community goodwill), they should consider the happy medium: mutual disclosures and acknowledgments with the goal of minimizing risk to everyone involved in reopening.  By reevaluating their approach to reopening, businesses can eschew the “Us vs. Them” posture inherent in back-to-work releases, and set the example that “We” are reopening, and want to do it transparently, collectively, and as risk-averse a manner as possible.  Some stock language is attached to this article for reference but, of course, it is important for anyone to seek independent legal counsel to evaluate their specific needs. To download a sample copy of a disclosure you can use, please click here. 

Before we close out this article, it is worth mentioning that the Southern Nevada restaurant chain referenced in the introduction reversed its decision to impose mandatory COVID-19 liability waivers less than a week after initial reports were published.  According to the reporting at the time this article was written, the business opted to offer virus screening and counseling services to its staff instead.  Who would have thought?