Canadian Underwriter

Common mistakes your clients make when they re-open

August 5, 2020   by Adam Malik

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A number of legal claims have been filed against employers because they’re not doing what they are supposed to be doing to keep their employees safe during re-opening, a Hub International compliance expert warned.

Some of the more common issues are failure to provide staff with face masks and not giving employees opportunities to wash their hands often enough amid the COVID-19 pandemic, explained Carrie Cherveny, senior vice president of strategic client solutions and compliance at Hub International.

In one case, it was alleged that employees “were not allowed to take frequent breaks to wash their hands,” she said during a recent webinar entitled The Next COVID Crisis: Claims, Lawsuits and Lessons We Can Learn Now.

Both the Centers for Disease Control and Prevention in the U.S. and the Government of Canada advise frequent handwashing of 20 seconds or more with warm, soapy water to reduce the risk of transmission of the novel coronavirus.

Cherveny said clients are always asking her what they need to do, what they’re responsible for, and how do they build a proper health and safety program to ensure employees are taken care of in the workplace.

“What I say always is, ‘The more stuff you put in that safety bucket, the better position you’ll be to defend the claim,’” she said. “And unfortunately, for many employers, it’s not if you get sued, it’s when you get sued.”

Without citing a specific number, she said “the numbers are off the charts” when it comes to lawsuits, because lawyers are bringing forward actions based on an employer’s negligence.

An important piece of advice for her clients: Take complaints seriously.

If an employee says they’re afraid to come back to work, the typical initial reaction of the employer is to brush it off as being an unreasonable concern, she said. “I’ve built all these safety protocols,” Cherveny said, characterizing common reactions of employers. “You’re just looking for an excuse not to come back to work.”

Cherveny says she always advises her clients, “You’ve got to take these concerns seriously. Dig deeper. Try to understand the employee’s fear and trepidation. Are there tangible demonstrable, legitimate reasons for that employee to be afraid?”

One way employers can show they’re taking the situation seriously is to hold employees accountable for their actions, she recommended. Provide them with the required safety protocols for returning to work and have them sign the documents.

“Safety is a workplace rule,” she says. “It is a standard of conduct. So when you issue safety protocols, employees who don’t follow them must be held accountable. There must be performance management. There must be documentation and discipline. Because if you don’t hold employees accountable for safety protocols, then you have a record of issuing a policy that you don’t enforce.”

That’s when you get into legal hot water, she added. “You want to talk about a smoking gun for plaintiffs counsel? That’s definitely one of them.”


Feature image by Dimic

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