Hi all – I hope you enjoyed the Thanksgiving break. I want to reiterate that it is far better to consult your lawyer early on to be proactive about issues than to wait and see what develops. This comment comes after a trial I’ve just completed to the tune of tens of thousands of dollars in attorney’s fees over the course of a week. (Thus, the lack of email last week.)

Recently a client asked me whether management should update COVID policies. The answer is yes. The first reason is that employers should never have policies that they are not willing to or don’t intend to enforce. If an employee complains that they were not protected by a policy such as a written COVID policy, this could be a valid complaint. On the other hand, if there is a written policy that’s not generally enforced, but employers make an exception “just this once,” that subjects the organization to liability when an employee who was not given that exception cries discrimination. So get rid of any COVID policies that are not enforced and enforce those that the organization has in writing. Send out information to employees on any changes. This advice applies to all employee policies.

Second, the CDC guidelines, particularly about returning to work after testing positive or exposure to COVID, have changed. The organization should adhere to the latest guidelines or be more conservative. An employee (or their survivors) could claim negligence on the part of the employer for failure to follow guidelines aimed at protecting the workers. Keep in mind that in some states (and pursuant to some insurance policies), worker’s compensation will not cover an employer for illness or death due to a COVID case that’s contracted at work. Employers are potentially on the hook. Where employees are following CDC guidelines, it’s harder to argue that the employer was negligent.

Finally, update the COVID vaccination policies. The science is showing that immunity provided by those first shots in early 2021 is likely not providing protection from current variants. If an employer wants its workforce or new hires to vaccinate or to encourage vaccination, it needs to re-evaluate booster requirements. This may be particularly important for those businesses whose customers are vulnerable, such as medical practices.