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.