Playing the Blame Game With Covid Spread in the Workplace

Knowing that even the President of the United States and his closest advisors, with all the resources available to them, can contract the virus at work events, what does that mean for employers and employees who may not have access to the same abundance of means or frequent, rapid testing available?

On September 26th, President Trump held an outdoor event to announce that his Supreme Court nominee would be Amy Coney Barret.[1] There, over 150 guests gathered, sitting tightly packed into the White House Rose Garden, many without masks as they were told face coverings were not required after receiving negative covid test results using a rapid test earlier that day.[2]

Mere days later, the dominoes began to fall; presidential advisor Hope Hicks tested positive on Thursday, and by Friday Trump announced that he and the First Lady had also tested positive. One by one, attendees began reporting positive covid tests; more than two dozen coronavirus cases have been attributed to the event, including former counselor to the president Kellyanne Conway, Sen. Mike Lee (R-UT), Sen. Thom Tillis (R-NC), RNC Chairwoman Ronna McDaniel, Trump’s campaign manager Bill Stepien, policy advisor Stephen Miller, former NJ Governor Chris Christie, as well as White House staff members, journalists, and a military aide. While all who attended had tested negative for the coronavirus the day of the event, and some continued to test negative for several days after it, it can take days for someone exposed to the virus to test positive or begin showing symptoms. Not to mention that, as we’ve discussed before, not all tests are created equal and test accuracy can vary widely.[3]

Trump also faced criticism for leaving Walter Reed hospital to drive by supporters gathered outside the facility, meaning that Secret Service agents were in close contact with the contagious President. Critics included Dr James Phillips, Chief of Disaster Medicine at George Washington University Emergency Medicine and attending physician at Walter Reed.[4] “That Presidential SUV is not only bulletproof, but hermetically sealed against chemical attack. The risk of COVID19 transmission inside is as high as it gets outside of medical procedures,” Phillips explained in a tweet detailing his concern for the Secret Service members inside the vehicle who were exposed.[5]

While it is still advisable for businesses to encourage employees to work from home as much as possible, for those currently conducting in-person business, this situation begs the questions of probability and liability in the workplace. Knowing that even the President of the United States and his closest advisors can contract the virus at work events, what does that mean for employers and employees who may not have access to the same abundance of means or frequent, rapid testing available? Moreover, as it is possible for someone to test negative after covid exposure and enter the workforce only to display symptoms days later, if employees contract covid at work, what liability does the employer hold? This may be a good time for business owners and corporate leaders to speak to a lawyer or their legal department to ensure they are prepared for all eventualities, and also take a look at internal policies and practices to make sure that risk reduction policies that follow CDC-recommended guidelines like social distancing and mandatory mask-wearing are not only in place, but being enforced and adhered to as well.

This isn’t an easy time, especially for small businesses; 22.1 million jobs have been lost due to the pandemic, and businesses are closing. Yelp’s Local Economic Impact Report found that 31,109 restaurants closed between March 1stand August 31st, 19,590 (61%) of which would be permanent, and the retail sector had “30,374 total business closures, 17,503 of which are permanent (58%)”.[6] Matt Haller, the IFA's senior vice president of government relations and public affairs agrees that the danger to small and local businesses is dire. “36,000 franchise small businesses won’t survive the winter without additional relief," he said in a statement to USA Today.[7]

I’m a fan of backup plans; I always have at least one, but preferably two or more. However, with all the uncertainty surrounding safety, the economy, and employment, the pandemic is an event that has pulled the rug out from under even the best-prepared of us. While in a perfect world we’d all work at home and stay in our own personal bubbles with a six-foot radius, full of Clorox wipes and hand sanitizer, that’s unfortunately not a possibility for many Americans who need to go to in-person work to put food on the table. That said, it’s not time to throw our hands up and leave it all to chance; in these cases, businesses can still plan for the future by anticipating and minimizing risk, learning the scope and limits of their (and their employees’) legal liability, and formulating plans on how to both prevent and deal with possible outbreaks and create a safe, legally compliant workspace.








These articles are prepared for general purposes and are not intended to provide advice or encourage specific behavior. Before taking any action, Advisors and Plan Sponsors should consult with their compliance, finance and legal teams.

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