COVID Lawsuits: How to Limit Your Exposure

COVID-19 has brought a myriad of unexpected challenges to small businesses across the world. As our local economies reopen, more challenges are likely to come. One such challenge is the possibility of COVID-related lawsuits. While we do our best to ensure the safety, success, and health of our employees, it is important to be prepared for the possibility of lawsuits and to protect your organization wherever you can.

Lawsuits may arise concerning unsafe working conditions, too early recall of employees, discrimination, unlawful layoffs, and potentially unpaid wages. While this can seem like an overwhelming list of items to protect against, small businesses can do a lot to mitigate their risks across the board.

The first step is to ensure that your reopening (and remaining open) are in line with local and state guidelines. Many areas are seeing a backslide in the phases of reopening due to a spike in COVID-19 cases.  It’s important to stay up-to-date with legislation as well as the directives and legal orders of your governor and/or mayor to ensure you are not in violation when you open your doors. In addition, look at industry regulations; keep yourself up-to-date with their directives to ensure that you are doing everything you can to mitigate risk to your employees and your organization.

Secondly, it’s important to develop a COVID safety plan which will define organizational policies and procedures that empower your employees to remain safe and healthy. Appoint a team, ensure oversight, put proper social distancing measures and PPE in place, and take into account the unique needs of your organization and your employees. From health-screenings to adequate social distancing measures, create clear guidelines on these processes and regularly check them to ensure they are being followed, implemented effectively, and that any needed updates/changes are made. Also, have these policies and procedures in writing and displayed and distributed to employees.

Communication is key in effectively protecting your employees and ultimately in mitigating the risk of lawsuits for your organization. Have written plans for reopening, what will happen if you need to close, and how sick employees should be treated will help to protect both your employees and your organization. Ensure your employees are aware of these plans and new policies by communicating regularly, clearly, and concisely. From e-mail communications and conversations to signage, and social distancing and hand-washing reminders, make sure that your employees are aware and consistently reminded of how to keep themselves safe when they are in the workplace.

Finally, be prepared for a potential claim. An important piece of this preparation is to review what your organization’s insurance covers and if additional protections are needed. Check with your insurance company to ensure all your health and safety needs will be met and that you are protected against other types of lawsuits related to COVID-19. While it may initially be a bit more expensive, you should follow the recommendations of your insurance company and purchase any additional coverage that may be needed.

It is possible that Congress will step in with legislation to protect small businesses from COVID-related lawsuits, limiting liability, but until that time, it is important to prepare. No matter your organization, employers need to be prepared to prove they have treated employees equitably and that they are doing everything in their power to keep them healthy and safe as we return to work.

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