During COVID-19, workplace safety complaints predominantly regard actions where employees allege that their employer fails to protect them from on-the-job coronavirus transmissions. Many of these allegations involve a failure to enforce physical distancing, mandate the use of personal protective equipment (PPE) like masks, and fail to take employees who report symptoms of COVID-19 seriously. It is more important than ever for businesses to ensure employees are complying with physical distancing requirements, keep the workplace clean, and provide PPE. If businesses don't put these kinds of protocols in place, employees are going to be concerned about going back to work. It’s common for employees to be hesitant to go back to the workplace because they are afraid to contract COVID-19.
Workplace Safety Retaliation Claims
Since businesses started reopening, we have started to see lawsuits where employees are alleging they were fired for expressing concerns about workplace safety, either internally to management, or to other coworkers. For example, say an employee tells you that they're worried about John in accounting because he went to a party over the weekend and now he’s coughing. Another employee expresses that they don’t think John should be at the workplace. Do not terminate that employee. That could be considered retaliation for engaging in protected activity by complaining about workplace safety concerns. Lawsuits are also arising where employees have been terminated because they went on social media or gave a media interview talking about their fears about the workplace and their employer’s ineffective safety protocols. Again, terminating those employees could be considered retaliation. Employees must be allowed to openly discuss the terms, conditions, and safety of their workplace. It's usually not a terminable offense to talk about their fears.
Other cases have alleged that management has instructed their employees not to discuss the subject of workplace safety, or the possibility that anybody at work might be infected, with coworkers. Basically, management is telling their employees not to talk about it or worry about it, and if they violate that order, they are going to be fired. A large number of workplace safety lawsuits relate to retaliation for these types of employee actions.
How to Avoid Workplace Safety Retaliation Claims
1. Establish a COVID-19 Task Force
One of the best things that a business can do to avoid workplace safety complaints is to establish a COVID-19 Task Force. I know this may sound very official and maybe even cheesy, but you really should consider putting a team in place that includes lower level management, HR representatives, and your higher-level C-suite individuals and/or President.
The reason that you want a team containing different management levels is because you need buy-in at all levels so you know exactly how your business is going to respond to COVID-19. Make sure that everybody has a say and knows what is expected, because you need your frontline managers to pay attention to when employees are sick. Are employees washing their hands? Are they wiping down equipment after it is used according to the schedule that you've put in place? You need to have people that are able to monitor employees, but you also need the highest levels of your business to be modeling good behavior. If your upper level management members are wearing masks and practicing social distancing, this sets a good example to the rest of your employees. If your management team isn't following the guidelines, your employees aren't going to either. Establish a COVID-19 Task Force and have somebody that employees can go to for complaints about failures to comply with the COVID-19 protocols that you have put in place.
2. Allow Anonymous Reporting of Employee Concerns
It is recommended that employers allow employees to report their concerns anonymously to avoid implicit bias. Even if a manager or HR representative thinks they would never fire someone for complaining, implicit bias could possibly sneak in, and perhaps the manager or HR representative becomes annoyed with this employee and possibly passes them up for a promotion. Anonymous reporting also fosters more open communication from your employees, especially if they might be nervous about reporting on a fellow colleague, or maybe even their own manager.
3. Have Compassion
Be prepared to extend a little extra compassion during this time. Workers are experiencing an unparalleled level of stress because of pandemic fatigue, widespread job losses, fear of job losses, and the onset of a recession. On top of all that, we are experiencing political divisiveness and racial tensions. There's a lot going on! I urge HR Managers and other leaders to have an extra level of sensitivity to employees that might be scared. I know that it can be very frustrating to have employee complaints at a time like this, especially when a lot of these protective measures can be expensive and time consuming, and you're trying to protect your employees. You're trying to do the best you can and there is no perfect system. Take a step back and extend some extra compassion during these uncertain times.
4. Adopt a Pandemic Response Plan
Another way employers can avoid workplace safety claims is to have a pandemic response plan (PRP) in place. Many states require that a company adopt a written PRP prior to reopening their business. Take the time to spell out what your company’s coronavirus workplace safety protocols are going to be and what's expected of employees, management, and the COVID-19 Task Force. Detail how are you going to communicate with your employees regarding what happens when another employee tests positive or exhibits COVID-19 symptoms. The PRP should touch on all of the aspects of reopening safely, and make sure that everyone is following it.
5. Monitor Public Health Developments
The pandemic is continuing to rapidly evolve, and so does public health guidance and legislative updates. For example, Pennsylvania and many other states have enacted new travel quarantines mandating a period of quarantine after an employee travels to a COVID-19 hotspot. It’s more important now than ever that employers stay updated on local public health developments so that you're fully prepared to comply with them.
Following the steps above can help you avoid potential workplace safety complaints.
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