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SPEAKER INTRODUCTION
Ed FoulkePartner
Fisher Philips
Tom Cecich, CSP, CIHStrategic Board Advisor
Avetta
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HOW THE CORONAVIRUS PANDEMIC IS IMPACTING EMPLOYERS FROM THE LEGAL LIABILITY PERSPECTIVE
§ OSHA has experienced a significant increase in informal complaints and whistleblower complaints since the start of the pandemic.
§ Increasing unemployment will likely result in even more complaints and lawsuits by current and former employees.
§ If 9/11 and the 2008 recession is a prologue to come, then employers should expect current and former employees to unleash an onslaught of allegations about the company’s misconduct over COVID-19- related and other workplace issues.
§ Defense attorneys are already publicizing various reporting procedures for discovery of employees or former employees to start legal action against their employers.
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HOW THE CORONAVIRUS PANDEMIC IS IMPACTING EMPLOYERS FROM THE LEGAL LIABILITY PERSPECTIVE (CONTINUED)
§ Given the high unemployment numbers, employees under financial stress and other pressures will encourage more filings of complaints and lawsuits.
§ As businesses start to resume operations, some employees will not be brought back and the resulting economic instability will encourage whistleblower complaints and other lawsuits especially by the prospect of receiving some form of financial gain.
§ Federal and state law makers have announced plans for increased enforcement investigations against the COVID-19 misconduct.
§ DOL Inspector General has also opened investigation on how OSHA is handling COVID-19 whistleblower complaints.
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THE GOLDEN RULE
§ Always follow Center for Disease Control and OSHA guidance.
§ Monitor all governor executive orders and state legislation dealing with COVID-19 and return to work statutes.
§ Institute written COVID-19 action plan including temperature taking, social distancing, disinfecting and sanitation, proper use of PPE, etc.
§ Communicate with employees on company’s COVID-19 action plan.
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False Claim ActDepartment of Justice National Center for Disaster FraudCoronavirus Aid Relief and Economic Security (CARES) ActWARN ActActions by IRSActions Under the Consolidated Omminbus Reconciliations (COBRA)Health Insurance Claims and verifications (Walmart and Nestles)
POSSIBLE LEGAL ACTIONS AGAINST EMPLOYERS BASED ON COVID-19
1. OSHA 2. Whistleblower Statutes
3. Other possible claims against
employers
Enforcement InspectionsPPE and BarriersSocial DistancingSanitationHazard Communication
Whistleblower Complaints 11 (c) Claims
22 other whistleblower statutes
Denial of benefits
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4. Negligent Lawsuits
5. Other Actions
• Negligent and nuisance statutes• Class-Actions (McDonalds and
Amazon)• Forced to work in close
proximity to potentially affected workers and customers
• No adequate protective equipment
• No hand sanitation• No safety training• Wrongful death actions (JPSUSA
Meat Packing)• Privacy claims
• Court Order to force companies to comply with CDC guidance and state official orders (Smithfield)
• Business interference insurance claims
POSSIBLE LEGAL ACTIONS AGAINST EMPLOYERS BASED ON COVID-19
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AVOIDING COMPLAINTS AND LAWSUITS
Follow CDC guidance for businesses
Follow OSHA guidance for return to work
Send employees with confirmed cases home until released by medical professional or complete self-isolation
Educate employees and engage them
Inform employees of confirmed cases of COVID-19
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ONCE A LAWSUIT IS FILED
1
2
3 Prepare witnesses and gather documents on company’s COVID-19 response plan
Determine if early dismissal of lawsuit is possible (workers compensation exclusive remedy)
Notify counsel and all insurance companies
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THE AVETTA SOLUTION
Suppliers95K
Countries120+
“We’re in the business of trying to find good suppliers
so we can help them get better and Avetta brings
that tool to the table.”
Taking the work out of
Qualifying your Workforce
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COMPANY PREPAREDNESS & RESILIENCY
Strategic Planning & Preparation
Actionable Tactics
• Business Continuity Plans & Effectiveness
• Critical Vendors & Alternate sources
• Worker Preparedness & Essential Activities
• Communicate Effectively & Often
• Update BCP and Test for Vulnerabilities
• Expand Supply Chain Network
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BUSINESS CONTINUITY PLAN (BCP)
Screen shot of checklist here
Review company and contractor
policies on communicable
diseases
Identify alternative
vendors
Conduct thorough online & off-line
training & simulation drills
COVID-19 Prequalification Checklist
Free BCP Guide & Templates at avetta.com/covid
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94% of Forbes 1000 indicated a disruption in supply chain
DIVERSIFY YOUR SUPPLY CHAIN
“32% increase in contractor count within the first month of solution implementation.”
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WORKER MANAGEMENT Manage All Workers• Utilized for both supplier &
internal employees• Track compliance requirements• Ability to block / track bad actors
Badging and Integration• QR code technology integrated
with worker management system
Capture All Qualification Types• Drug & Alcohol testing,
operator training
New COVID-19 Induction Training Capability
§ Require contractors coming onsite to be trained on proper hygiene (hand washing, gloves, PPE care, etc)
§ Take a quiz to prove knowledge
§ Allow badge access only for those who pass
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POST-COVID RETURN TO WORK PROTOCOL
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KEY TAKEAWAYS - POST PANDEMIC
• Safe Return to Work Protocols
• Evaluations of Critical Suppliers
• Value Chain Growth • Real Time Vulnerability
Assessments
Short Term
• Supply Chain De-globalization
• Broader supplier risk assessments
• Supply chain resilience
Long Term
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RETURN TO WORK RESOURCE CENTER
avetta.com/covid
White PaperSupply Chain Lessons Learned from the Coronavirus and SARS
Outbreaks
WebinarBest Practices for Returning to
Work Safely and Effectively After COVID-19
Safety Moments(11) COVID-19 Recovery MomentsSix Essential Steps to Reopening
avetta.com/moments
Find these resources and more at
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Fisher & Phillips LLP is dedicated exclusively to
representing employers in the practice ofemployment, labor, benefits, OSHA, and immigration law and related
litigation.
THESE MATERIALS AND THE INFORMATION PROVIDED DURING THE PROGRAM SHOULD NOT BE CONSTRUED AS LEGAL ADVICE OR AS CRITICAL OF THE CURRENT OR PAST ADMINISTRATIONS.
BE SAFE!
REMEMBER:BAD DECISIONS MAKE GOOD STORIES AND USUALLY THE EVENING NEWS.
Edwin G. Foulke, Jr.Phone: 404-240-4273
Email: [email protected]
Tom CecichPhone: 919-601-5224
Email: [email protected]