Mitigating employer risk as Utah reopens for business
As Utah embarks on the phased re-opening of its economy as the COVID-19 pandemic evolves, business owners and employers are faced with a myriad of critical decisions to ensure the safety of their workforce and workplace. Employers must carefully and thoughtfully navigate these unprecedented times and create a safe and healthy workplace for employees and customers, while simultaneously addressing other employment-related issues that have arisen as a consequence of the pandemic.
Utah has been a leader in proactively managing its response to the COVID-19 pandemic. In addition to federal guidelines (such as those issued by the Centers for Disease Control (CDC)), Utah state and local agencies have issued guidance and best practices to inform and assist Utah businesses as they reopen. In April 2020, the Governor’s Economic Response Task Force published the Utah Leads Together 2.0 health and economic response report, which incorporates these recommendations and best practices for businesses to consider and incorporate into their return-to-work plan.
Holland & Hart has analyzed and sorted through the numerous guidance and best practices recommended by federal, state, and local government agencies, and compiled the following list of important initial considerations to help businesses ensure and maintain safe and healthy workplaces while mitigating other employment law risks:
- Create a task force or designate a workplace coordinator who will create, plan, and maintain your business’s return-to-work plan and will be responsible for COVID-19 issues
- Review and stay up to date with state and local ordinances as well as federal guidelines from the U.S. Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), and CDC
- Communicate with your building management or landlord regarding their strategy and plan for reopening
- Establish an emergency communication plan and ensure employees’ contact information is up to date
- Consider what personal protective equipment and other supplies will be needed and create a stockpile
- Create an employee recall plan that is objective, fairly applied, and fully documented in order to prevent any appearance of discrimination or impropriety
- Determine which employees (including furloughed and laid-off employees) can immediately return to work and which will need accommodations under the Americans with Disabilities Act (ADA), the Families First Coronavirus Response Act (FFCRA), or the Family and Medical Leave Act (FMLA)
- Create a return-to-work letter for returning employees, outlining protocols and new workplace practices and precautions
- Update leave and accommodation policies and accounting procedures
- Create safety training for returning employees and communicate with employees clearly and often regarding safety precautions and procedures
- Implement testing policies and procedures for employee screening of COVID-19 symptoms
- Create an action plan outlining steps the business will take if employees become sick or test positive for COVID-19
- Implement a travel policy limiting non-essential travel
Mitigating other employment law risks include:
- Mitigate discrimination claims by utilizing objective decision-making criteria for recalling or terminating employees and avoid hiring or firing decisions based on an applicant’s or employee’s: (1) vulnerability status for COVID-19 (note: state and local ordinances may possibly have specific definitions and special rules for “vulnerable” individuals); (2) reasonable accommodation requests; (3) leave requests pursuant to FMLA/FFCRA
- Mitigate Fair Labor Standards Act (FLSA) wage claims by considering compensating employees for time spent engaging in required pre- and post-work activities (temperature screenings, testing procedures, etc.) for non-exempt employees, and properly tracking non-exempt workers’ time
- Mitigate ADA claims by avoiding disclosure of medical information, maintaining medical information regarding COVID-19 separate from personnel files, and considering allowing employees to work from home as a reasonable accommodation
- Mitigate harassment claims by providing online reporting options for employees and creating and consistently enforcing protocols for phone and video investigations
The Utah legislature also recently enacted legislation that grants limited civil immunity to employers should employees or customers be exposed to COVID-19 on premises. This legislation enables businesses to reopen with more certainty about COVID-19-related civil lawsuits. Under the new legislation, a person is immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person. The legislation defines “person” broadly as individuals, associations, institutions, corporations, companies, trusts, limited liability companies, partnerships, political subdivisions, government offices, departments, divisions, bureaus, or other body of government, and any other organization or entity. This immunity does not apply in cases of “willful misconduct,” “reckless infliction of harm,” or “intentional infliction of harm.” The legislation took effect May 4, 2020 and will be enacted as Utah Code § 78B-4-517.
With Utah issuing clear standards and providing immunity from lawsuits in certain circumstances, businesses and employers can reopen with greater confidence that they will not be held liable for unfortunate outcomes that may occur.
Mickell Jimenez and Karina Sargsian are attorneys at Holland & Hart specializing in complex commercial litigation. Mickell provides seasoned counsel to employers to proactively handle labor and employment and litigation issues. Karina has experience in all aspects of managing complex employment and commercial litigation in both state and federal courts.
This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author(s). This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.