In a pandemic, what can employers be held liable for? That's a question nearly every state, in addition to Congress, is attempting to answer.
Employers across the U.S. are aiming to calculate potential exposure as they consider vaccine policies, on-site operations and more end-of-pandemic logistics. But as different states pass different laws, employers face a "moving target" in terms of their liability, Karl Lindegren, co-chair of Fisher Phillips' California litigation practice and partner at the firm, told HR Dive in an interview.
"Every state and Congress is looking at something, given where the pandemic is," Lindegren said. "Everyone is taking different approaches."
Kentucky is the most recent state at press time to pass a law that shields businesses from certain coronavirus-related lawsuits. It joins a growing list of states that have enacted such legislation -- a list that includes Florida, West Virginia, Indiana, Alabama, Ohio and Georgia.
"I think something is likely to come out in every state setting some kind of a standard as to what they expect of employers in particular in how to deal with this," Lindegren said. Employers will need to understand, for instance, how return-to-work plans may interact with such standards. "If we order people back to work when we didn't have to, will that meet the standard for liability?"
But what happens when employers have multiple standards to consider? "It's a potential nightmare for multi-jurisdictional employers in terms of exposure," Lindegren said.
To keep pace with emerging legislation and avoid liability, employers must find someone to keep abreast of current information. "If employers don't have someone designated to watch this, find someone," Lindegren said. This person should stay on top of how legislation in the works is taking shape, on both federal and state levels.
It's important that this person track evolving safety guidelines, too. When recommendations change, this person needs to be able to help organizations adjust, Lindegren said.
This element is key, Lindegren said, because employers want to be able to show they did everything they could to keep workers and others safe. While the emerging liability shield laws differ from each other in many respects, none of them will shield employers that are reckless, wanton or in willful disregard of what public officials are saying, Lindegren said.