Employers Should Learn from the NFL in Addressing Operational Risk
Not only does the COVID-19 pandemic create a risk of legal exposure for employers and business owners, but it also creates operational risk. For businesses that have managed to remain operational through the pandemic, it is critical that they maintain operations to the highest level possible. While compliance with the CDC, state, and local guidelines is a burden for business, compliance with and enforcement of these policies should decrease the risk of further disruption to operations. Two recent examples from the NFL highlight the need for COVID-19 workplace policies and enforcement.
This past Sunday, the Denver Broncos played a professional football game without a quarterback – the most essential position on the field. Not surprisingly, the Broncos were crushed. While the game’s outcome might not have changed, the Broncos did not even give themselves a chance to be competitive because of a breakdown in their COVID-19 protocols. The Broncos’ four quarterbacks all had high-risk close contacts with each other (greater than fifteen minutes; within six feet) without wearing masks. While this almost certainly violates the Broncos’ written policy, the Broncos obviously did not do a good enough job enforcing this policy. As a result, when one of the quarterbacks tested positive, all the remaining quarterbacks had to quarantine and miss the game. This illustrates that it is not sufficient to simply have workplace COVID-19 guidelines; employers must actively enforce these guidelines. This also demonstrates the extreme risk of having a group of key employees meet in person. If these meetings cannot be held remotely or with proper social distancing precautions, employers should consider having some key employees skip the in-person meeting to ensure continuity of operations.
The NFL’s other major COVID-19 issue involves my team, the Baltimore Ravens, who have endured at least a weeklong outbreak. News reports indicate that the outbreak source was a coach who came to the team’s facility despite having symptoms and then compounded his mistake by not wearing a mask at all times. Again, while this would presumably violate the Ravens’ policies, the policies were clearly not meaningfully enforced; while the coach appears to be facing discipline, the damage has already been done. As a result, as of this writing, at least twenty employees (many of whom are players) have now tested positive and will have to face the challenges of being sick with COVID-19. Moreover, while the Ravens have not been entirely decimated at one position group like the Broncos, the Ravens will be forced to play without a large portion of their roster, particularly since certain close contacts are required to quarantine. To translate this into broader terms, this breach in the protocol by one employee has led to an outbreak that will substantially negatively impact productivity and success, not to mention an unnecessary health risk to employees. Of course, this breach has already had a financial cost for the NFL and its partners as it resulted in the postponement of what would have been a nationally televised Thanksgiving night game. This is a good reminder that employers should enforce policies and remind employees of the critical need to be honest when completing screenings and require masks when employees are in close contact.
While it is a disruption to operations to keep employees out of the office or socially distant and to expend resources on COVID-19 policies and enforcement, the cost of non-compliance can be far greater. Employers should keep the bigger picture in mind when making COVID-19 decisions since keeping employees safe is aligned with maximizing operations during the pandemic. Just ask the Broncos and the Ravens if they regret not implementing/enforcing policies that would keep their employees safe and their best players on the field.
ABOUT RUSSELL BERGER
As an accomplished labor and employment attorney and Practice Group Director, Mr. Berger provides business counsel to employers on employee matters and is well-versed in litigating in both state and federal courts. Russell Berger is the trusted legal counsel every business owner needs to feel confident in their decision-making and secure with their assets. As a Practice Group Director at Offit Kurman, Mr. Berger has direct experience with managing other managers, which he draws from in advising his clients. He is a pragmatic problem-solver that works efficiently and tirelessly to present his clients the best possible solutions to their most complicated issues. He represents employers, businesses, and professionals in employment disputes across the nation.
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