One often overlooked area where employers could become liable for Coronavirus (COVID-19) related claims comes from actions that supervisors take or fail to take. A supervisor that ignores a request from an employee for leave under the Families First Coronavirus Response Act (FFCRA), an accommodation due to a disability, or a safety complaint related to COVID-19 is a major source of potential liability during and after the pandemic. These claims are just beginning to arise in the court system and are expected to accelerate once the courts return to their regular workload.
A claim could arise from an oral request to a supervisor that an employee needs time off to take care of their child or that they are not feeling well and want to get tested for COVID-19. Disability requests may include an employee stating that they are afraid that they are more susceptible to COVID-19 because they have an underlying condition (heart problems, diabetes, breathing problems, etc.) or that their doctor does not want them to come to work because of the risk of coronavirus.
Supervisors should encourage employees to bring any safety-related concerns about the coronavirus to their attention. Employers should follow all guidelines from OSHA and the CDC to the maximum extent possible in the workplace and regularly monitor employee compliance. Safety-related concerns could include spacing issues in the lunchroom or hallways, areas that are not being thoroughly cleaned, and requests to wear a mask or other protective equipment if not already being mandated.
There are a number of steps that companies should take to reduce potential liability:
- Train your supervisors to be aware of coronavirus issues. They should be trained to bring any oral requests for leave under the FFCRA or other leave for COVID-19, requests for disability accommodations, and any safety concerns about COVID-19 issues to HR or the relevant person immediately. These requests should be handled formally and fully documented.
- Companies should provide a policy to supervisors outlining what they are expected to do. This policy will serve as some protection for any employee claim that their request was ignored. The policy should state as above that “supervisors and managers are required to bring any oral requests for leave under the FFCRA or other leave for COVID-19, requests for disability accommodations, and any safety concerns about COVID-19 issues to HR or ______________ immediately. These issues must be dealt with in the appropriate manner to ensure that all claims are thoroughly addressed.”