As organizations of all kinds prepare to reopen facilities and bring employees back onsite as the COVID-19 crisis eases, HR pros need to be ready to advise leadership of both potential legal risks and how to protect against long-term damage to their reputation.
And there is one risk factor that many executives, and even legal counsel, are not yet thinking about – states and local governments are taking a larger role in protecting workers from the coronavirus with new rules and acting on their behalf in other, non-regulatory, ways as well.
As detailed in a recent paper for the Harvard Law School’s National Employment Law Project (NELP), state and local governments are now examining how they can safeguard workers in their jurisdictions with COVID-19 exposure protection rules that go beyond federal laws and regulatory standards.
COVID-19 safety naming and shaming
For example, in addition to actively enforcing state laws, especially in high-risk industries, state government agencies may begin collaborating with worker organizations and publicizing enforcement actions to “name and shame” employers who don’t adequately protect workers from the coronavirus.
Employers should also expect active efforts to publicize and enforce any state and local requirements for updating COVID-19-related safety plans and creating employer/employee safety committees.
Increased whistleblower protections for workers who report unsafe conditions due to poor coronavirus protections are also likely in many states.
Employers may also face COVID-19-related public nuisance lawsuits.
The NELP report states, “In April, two public interest law organizations filed suit … based on the risk of community spread of COVID-19 resulting from the companies’ failure to comply with CDC guidelines in their plants. The lawsuit sought no money damages, only safer working conditions.”
The suits were dismissed on procedural grounds, but the publicity forced coronavirus protection changes at the plants.
States using soft powers to protect workers from coronavirus
In addition to tracking any new local and state-level coronavirus safety rules, however, employers need to be aware that states are also examining whether to use “soft powers” to help improve workplace safety:
The report details potential government interventions that employers should anticipate, including:
- Helping with informal mediation to improve conditions in unsafe workplaces;
- Educating workers, employers, and the general public about applicable laws and measures for workplace safety;
- Disclosing information about employers who are endangering workers and the public, so that customers and others can be aware of this conduct;
- Convening stakeholders, including employers, workers, or their representatives, to strategize about how to create safe workplaces;
- Collaborating closely with worker organizations, like unions, worker centers, and others.
Getting ahead of the curve
For all employers, the best way to avoid both legal and reputational risks related to COVID-19 is to understand and implement worker and customer protection best practices.
That is also the best way to keep your employees focused and productive as they navigate a fresh set of challenges around returning to work while the coronavirus crisis continues impacting their personal lives with closed daycares and schools, drops in household income and other challenges.
One possible positive outcome for HR? A chance to show your partners, clients and prospective recruits that you are who they want to do business with.
By publicizing that your organization is doing everything you can to protect workers and customers from the coronavirus – and highlighting the positive impact that’s having on your ability to keep your business moving through the COVID-19 crisis – you can boost your reputation as an employer, increase awareness among potential clients and partners, and help secure future growth and success.
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