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COVID-19 Liability Protections Are Not Immunity

Published May 28, 2021

Written by: Dave Luter
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Dave Luter

Dave Luter is a Consultant with over 30 years of experience in information technology management and business process re-engineering. His experiences have been split between healthcare, the public sector, and manufacturing/distribution in both industry and consulting environments. In addition to his Six Sigma Master Black Belt, Dave’s expertise includes project management, business development, workflow analysis, data capture/analysis, systems design/development, web design/development and implementation of clinical applications. 


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The light at the end of the tunnel is shining brighter for businesses that were forced to halt 2020 strategies and goals, customer acquisition and procurement. As the economy slowed to a halt, business leaders struggled to develop a risk management strategy that determined the how, why and when their COVID-19 safety protocols had been enacted. The waters were muddy because initial reopening strategies varied state by state and frequently changed based on infection rates in communities.

Liability laws may be established in many states, but those laws don’t define complete immunity from a potential lawsuit. On top of this, there are tightened regulations for securing and renewing liability insurance for businesses, which may now require verified documentation and the clear steps taken to protect employees as part of return-to-work strategies.

In moments of crisis, like an unprecedented pandemic, it can be difficult to remember to record the actions that will inevitably help ensure safety and continuity of operations. There are a few challenges that our consulting firm found when speaking with clients and ways to bridge the gaps between compliance and bandwidth that can help build the bridge over troubled waters and provide a safe place to stand in the midst of chaos.

Pandemic Exhaustion

It has been a full year since COVID-19 started wreaking havoc on businesses and operations around the world. Business leaders and employees are worn out and apathetic to the added burdens of preventing workplace exposures, and many organizations would believe they’ve done everything possible to protect team members in the workplace.

The reality is that belief is not an adequate measure to prevent potential liability lawsuits if there are exposures at work. As a result, leaders may fear that auditing protocols enacted at the height of the pandemic may uncover missing information.

Missed Details and Fear of the Unknown

Documenting information or non-compliance found to be missed during an audit will help alleviate claims that your organization directly intended to harm employees by failing to act. If your organization had already enacted and documented protocols, this step could also pinpoint unintended omissions and provide a road map for leaders to clarify what specific actions were taken at that time.

An organization’s records should include deployment dates and information about internal and external policies, screening protocols, disinfection regimens, social distancing measures, and personal protective equipment requirements. Any internal messaging initiatives to communicate with team members should also be included in addition to updated sick leave policies.

Near-Constant Moving Targets by States

Businesses with team members and office locations around the country might find it especially difficult to maintain current records of state-by-state guidelines and regulations because they frequently change, expire to make room for new orders and have many different start and end dates. 

Further complicating documentation is finding a conclusive source for information. If there is uncertainty about how well-documented your internal strategy is, it’s highly recommended to start and continue documenting regulation and guideline changes in relevant states until the pandemic has subsided.

Lack of Internal Bandwidth

One of the greatest obstacles that businesses face as they address this necessary attention to detail is internal bandwidth. Leaders are drowning in an extra-long list of operational issues to be addressed and this increased focus for the overall well-being of the organization itself can be suffocating.

Whether you choose to hire a consultant or a new employee versed in organizational change, documenting changes combined with a clear plan for doing so in the future will prove valuable if a lawsuit is filed.

The pandemic has laid bare that surprises will always be around the corner and business leaders have to learn the importance of clearly recording steps and decisions taken during a crisis in an effort to support and protect team members. While not every organization has the bandwidth to do so, it is important to find a way to ensure thorough documentation and have a plan in place to clarify any missing data.

Filling in the blanks retroactively isn’t a failure; it’s a strong step to protect the livelihood of the team members you employ and the organization’s total well-being in today’s environment.

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