The Upcoming Wave Of Covid-19 Liability In Business

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Covid-19 has fundamentally changed how we work. For many industries, that adaptation to working from home was simpler than others. Manufacturing, food service and so many other critical industries don’t have the ability to shift their employees to safer ways of working. This means that a host of employees will be at much higher risk of contracting or transmitting Covid-19.

As of September 15, 2020, according to data from Johns Hopkins University cited by Brookings, “there have been more than 6.5 million confirmed COVID-19 cases and more than 195,000 deaths in the United States.” While voluntary social distancing and lockdowns that took effect in March 2020 worked initially to isolate and drive down infections, those actions precipitated a severe economic downturn. As noted by Brookings, “the demand shock resulting from quarantine, unemployment, and business closures dealt a blow to consumer services.” As the nation begins to deal with this economic crisis and we start to reopen more businesses, we will face the prospect of a second wave of liability for employers. Let’s explore how employers can make their environments safe and reduce their liability.

I’m not a lawyer, so please don’t construe anything in this article as legal advice. Rather, look at it as guidance to assist in understanding what’s happening in the world and in this space. What’s important for employers to understand is that the standard of care, what you need to do to protect your employees, is based on what others are doing. This standard of care can change, and it’s important for employers to stay ahead of the curve.

The Basics

Socially distanced work stations, mandatory face masks and hand sanitizers are the staples of the 2020 work environment, at a minimum. The states mandating these precautions in public spaces have seen a larger decrease in COVID-19 daily growth rates, especially when compared to the states who have not delivered these types of mandates, according to a report from Wei Lyu and George L. Wehby.

Getting Even Better

Conducting daily symptom checks and even improving building ventilation systems have recently been recommended by many public health departments for both businesses and schools. Many employers are now also shifting to providing additional time off to employees. This has the effect of ensuring that employees can take time off if they do contract Covid-19 without the worry of losing pay, preventing them from returning to the office and infecting their co-workers.

Getting Ahead Of The Curve

The next level you can invest in is contact tracing — to identify who has been around infected employees. What many employers are finding is that overwhelmed health departments have begun to put the ownership of tracing on businesses, and they don’t have the experience or time to do so effectively.

A typical manual contact tracing interview, from my experience, takes approximately 90 minutes to identify who has been in contact with them and how long. Did you know that up to 60% of contacts are unwilling to share all the necessary information? 

According to the New York Times, “Contact tracing, a cornerstone of the public health arsenal to tamp down the coronavirus across the world, has largely failed in the United States; the virus’s pervasiveness and major lags in testing have rendered the system almost pointless. In some regions, large swaths of the population have refused to participate or cannot even be located, further hampering healthcare workers.”

This is where technology, specifically automated contact tracing, can help.

Contact tracing is described in detail by the CDC. Employers that don’t contact trace reports in their office could be subject to liability under state laws as well as OSHA, workers’ compensation and potentially even their state’s health reporting law. In Utah, for example, anyone with knowledge of an infection or potential infection has to report this to the health department within 24 hours.

Rapid testing must be a priority, and workplaces need to work with public health officials to make this testing accessible to their employees. The speed at which we can trace, isolate and test can make the difference to prevent up to 80% of transmissions, according to a recent study from The Lancet. We’ve seen now through studies like this one that the biggest impact on lowering further transmissions is reducing delays in testing. By expanding contact tracing and testing, we can decrease those delays.

So, how do you start automatic contact tracing? First, remember the golden rule: Adoption is king. If people won’t use the technology, then it likely won’t work. Look at technologies that your employees use every day, such as commonplace Wi-Fi, for your contact tracing automation. Second, get it in early. This builds confidence, ensures you are up and running if and when there is an event you need to respond to and shows you’re taking it seriously.

The reality might not be ideal, but it’s simple: Wear masks. Socially distance. Automate your contact tracing process. With these first steps, you’re well on your way.

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