This post was written by Daniel Johnson from our partners at myHRcounsel, an online legal solution for HR professionals. The original post can be found here.
As stay-at-home orders expire and restrictions loosen, many employers are thinking ahead to their reopening phase. Organizations are generally encouraged to implement a slow, staggered ramp up phase to ensure they can provide a safe workplace and comply with a wide range of legal mandates. One of the most important pieces for a responsible reopen, a requirement in many jurisdictions, and perhaps the most important new policy you implement this year is a Pandemic Preparedness and Response Plan (“response plan”).
What is a Response Plan?
A good response plan provides a framework for all employees to work together to reduce risks, identifies steps that need to be taken in the event of exposure, and outlines a contingency plan for emergency and/or continued operations, as well as a recovery plan.
While each industry and organization must tailor their response plans to their particular needs, obligations, and state and/or local-imposed requirements, generally speaking, a comprehensive response plan will include some common elements:
Designate key employees who will manage the organization’s response to a pandemic. Make a plan to respond to the risk of a pandemic impacting the workplace. Seek input from experts as needed and consider whether your organization or industry requires or would benefit from specific training to properly lead and respond in a pandemic or similar crisis.
Compile in advance emergency contact information for your workforce. Determine what types of information you will need to obtain in the event of a pandemic or workplace exposure and the information you will need to disseminate. Identify in advance where you will be able to find current and reliable information about an outbreak, including symptoms and prevention strategies. Develop a strategy for communicating necessary information to employees quickly and in a format that is easily accessible while remote.
- Risk Management and Containment
Identify risk factors, including areas and job tasks with potential exposures to illness. Establish workplace strategies for mitigating the spread of illness. Educate your workforce on proper health and safety protocols. Ensure necessary PPE and supplies, such as face and hand-hygiene products, tissues, disinfectant, and trash receptacles, are available in all locations.
Develop policies that can be implemented in the event of a pandemic or exposure, such as telework opportunities, limited occupancy, staggered shift starts and breaks to reduce the number of people in the workplace at a time, and rearranged work stations to maintain distance between individuals.
Consider the potential impact of a pandemic on your business. Can you plan to continue to provide your products and services in unconventional or non-traditional ways? Is demand for your products or services likely to increase or decrease? Identify the essential resources and employees to meet the changes in demand and fulfillment. Consider how a pandemic might affect your ability to obtain other critical inputs (e.g. supply chain interruptions). What if your employees are subject to a quarantine? Is telework available? Does the business need to operate every day? Can it sustain a shutdown?
Prepare for increased employee absenteeism, as employees may be sick themselves, may need leave to care for sick family members, or may wish to remain home due to fear of contracting illness. Refer to applicable federal, state, and local legislation, as well as your organization’s own policies and collective bargaining agreement (if applicable), to determine what types of leave are available to employees, including in the situation of work refusals.
The return to “business as usual” will likely take place gradually as the immediate crisis subsides. Consider phases of recovery in your workplace pandemic plan. Which aspects of your business are likely to return to normal first? How can you ensure a smooth transition from remote work back to the workplace? Are you prepared for potential waves of business interruptions if a pandemic is ongoing?
These are merely the basics of developing a response plan. The CDC has published additional guidance on how to prevent the spread of COVID-19 in the workplace. We encourage you to reach out to your myHRcounsel team of attorneys for advice and assistance putting together a compliant and tailored response plan for your organization.
Why is a Response Plan Important?
For one thing, many states require some sort of response plan to reopen once business closures are lifted. Accordingly, to maintain legal compliance, employers should have a response plan in place before they reopen their doors.
Even where not technically required, employers should treat this as a mandatory document for their best practices. While a response plan is not a substitute for responsible, ethical, and legal business practices, it is vital document for an organization’s records to demonstrate its good faith efforts to promote and maintain a safe and healthy workplace and comply with legal mandates.
In times of great uncertainty and crisis, it is common to see an uptick in litigation, and we expect to see a corresponding spike as we navigate the reopening phase of the current pandemic. Failure to have a thoughtful and compliant response plan makes an organization an easy target. Bringing employees back to the workplace too forcefully or in a discriminatory manner, reopening to the public too quickly or casually, and/or skipping vital safety precautions invite retaliation and liability claims, among others. In some cases, such as where gross negligence is involved, employers are not necessarily shielded from employee lawsuits as a result of workers’ compensation laws, and without a written plan to outline procedures, expectations, and employee rights and obligations, an organization is especially vulnerable to claims against which it will struggle to defend itself.
It can be a very complicated matter to weave the complex web of federal, state, and local laws and regulations, public health guidance, and operational needs. Missteps, even where unintentional, can lead to bias in the reintegration of the workforce, mishandling of sensitive information, failure to properly safeguard against illness and injury, and loss of client and employee trust and productivity, all of which may result in unnecessary time, expense, and litigation.
A Pandemic Preparedness and Response Plan is perhaps the most important document you can put into place for your workforce this year. PrimePay HR Counsel can help you get it right. https://primepay.com/hrcounsel
myHRcounsel is hosting a free webinar: Open for Business: How to Avoid the Legal Pitfalls of Getting Back to Work During the COVID-19 Pandemic, on Tuesday May 19th. Register here
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Disclaimer: Please note that this is not all inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding specific application of the information to your own plan.