Investigating Workplace Safety Concerns in the Age of a Pandemic

Presented by Robinson+Cole LLP

Britt-Marie K. Cole-Johnson, Esq.Abby M. Warren, Esq.

Agenda• COVID-19 Pandemic & Investigations• Current Headlines & Implications• Investigating Health & Safety Complaints

– Pre-Investigation– Investigation– Post-Investigation

• Takeaways and Questions

COVID-19 Pandemic: Impact on Workplace Investigations

• March 11, 2020 - COVID-19 declared a pandemic by the World Health Organization.

• March 13, 2020 - National emergency declared in U.S.• While investigations may have decreased initially, as time has

passed, and workplaces are adapting to remote working and other changes, investigations may be increasing

• Videoconferencing is being more readily used and investigators are adapting to the new world (e.g., new techniques to build rapport, etc.)

• Allegations are changing and may be more impacted by the state of the world and the workplace

COVID-19 Pandemic: Health & Safety in Workplace

• Focus on health/safety in workplaces across the country, influencing policies, procedures, expectations, and employee conduct

– Personal hygiene– Social distancing– Face masks/coverings and other personal protective equipment– Travel– Self-quarantine

• Various requirements and restrictions imposed on businesses at the federal, state, and local level

• Employers and workplace investigators will likely be presented with complaints from employees related to myriad safety concerns

Current Headlines: Are Health & Safety Investigations Being Conducted?

• Amazon disciplining warehouse workers who violate social distancing rules, which mandate that they stay 6 feet away from their colleagues in order to limit the spread of the coronavirus.

• NFL disciplining players for attending indoor night clubs, concerts, and events that are prohibited by state and/or local regulation, executive order or a law implemented due to COVID-19.

• Sheriff’s Deputy in Boone County, Indiana terminated after failing to take a mandatory COVID-19 test.

You Receive a Complaint . . .• In one of your facilities, employees have complained

that the manager is not enforcing social distancing and mask-wearing. This state is a “hot spot” with a high positive test rate for COVID-19. Is this something that should be investigated?– What level of review is required?– We typically rely on the EEOC’s standard in investigating

complaints, but is there another applicable standard for health and safety complaints? Are there instances where an investigation is required by law?

Pre-Investigation: Whether to Investigate• Required by employer’s policies• Required by law

– Duties under state and federal health and safety laws (e.g., OSHA) to provide a safe workplace

– Duties under applicable state and federal laws• Are there health and safety complaints that would not require a full

investigation? What and when?• In the prior example, where a manager is not enforcing social

distancing and mask-wearing, could an investigation be required by law?

Pre-Investigation: Investigating Health/Safety Complaints

• You are asked to investigate the following allegation: “Respondent who works in the distribution center has refused to wear a mask, has coughed on others as a joke, and has been harassing others.” This Complaint was made in another state and you don’t know any of the relevant rules.– Do you need to understand the relevant guidance

from public health authorities and the government?

– Do you need an OSHA expert to assist?

Background Research on Public Health Guidelines

• Should the investigator review the relevant local, state and federal guidance?

• If so, what would such a review entail?– State Guidance

• Executive Orders• Department of Health• Agencies that regulate businesses/economic development

– Guidance issued by the CDC– Guidance issued by OSHA – Guidance issued by DOL– Other federal, state, and local health institutions and

agencies, government, etc.

Pre-investigation: Potential Allegations• Masks• Handwashing• Sneezing/coughing• Social distancing • Travel/High risk states• Failure to identify potential exposure to COVID-19 (e.g., in employee

screening questionnaire) • Employees who report having or being exposed to COVID-19• Interactions with customers • Employee and managers’ failure to adhere to health/safety rules• OSHA obligations

Hypothetical: Gossip About Positive COVID-19 Test

Gina complains to her employer. She says a coworker is telling other employees that his son has tested positive for COVID-19. He is still reporting to work on-site. Would you conduct an investigation of this complaint?

It comes to your attention that a Senior Manager attended a party with his direct reports. Afterward, he learned that one of his direct reports was symptomatic for COVID-19. Later, he learned that his direct report tested positive for COVID-19 at the party. The Senior Manager and the other employees who attended the party all undergo COVID-19 testing and do not tell the employer until they confirm that everyone tested negative. During that time, they all continued to report to work. Would you conduct an investigation into this issue?

Hypothetical: The Party

John complains about a coworker who is making jokes about COVID-19 and is purposefully coughing on other employees saying that “COVID-19 is not real.” Would you conduct an investigation into this complaint?

Hypothetical: Joking About COVID-19 in Workplace

Susan believes that a coworker is lying about his need to take leave to care for his child. He has said that his child is going to school full-time and yet he is taking off Fridays, saying it is related to childcare needs. Susan reports the coworker's suspected abuse of the employer’s leave policies to management. Would you investigate this complaint?

Hypothetical: Abuse of Leave

• Are there actions that must be taken immediately to ensure the health and safety of the workplace?

• Is there something about the complaint that requires involvement by the legal team?• Is there anything that would result in a report being made to public health authorities?• What role do admissions play in determining whether and how to investigate?

– For example, you ask the employee whether he attended a party, may have been exposed to COVID-19, and underwent testing without notifying HR. He says “yes.” Is there anything more that you must or should do?

• Is there ever a need to engage an expert who specializes in workplace health and safety?

Pre-investigation: Other Considerations

Pre-investigation: Choosing the Investigator• For workplace health and safety complaints, when

would it make sense to investigate internally?• When would it make sense to engage an external

investigator?• What are the optics of each choice under these

circumstances?• Is greater credibility needed or is it more credible to

have an internal investigator under these circumstances?

Pre-investigation: Scope of the Investigation

• What is being investigated?– What if other health/safety violations by this

employee arise during the investigation?– What if other health/safety violations by other

employees arise during the investigation?• Define scope of ultimate findings

– Factual substantiation– Violation of policy

An employee complains that he has been sexually harassed by his supervisor. In his complaint, he also alleges a number of policy violations by the same supervisor, including her lax approach to enforcing the employer’s health and safety policies. Should these two sets of allegations be investigated by the same investigator and at the same time?

Hypothetical: Workplace Harassment

Pre-investigation: Planning the Investigation• Virtual vs. in-person investigations• Review relevant policies and guidelines

– Employer’s COVID-19 policies– Guidelines from federal, state, and local agencies and

authorities – Investigation Policy

• Gather and review relevant background documents

• Witnesses should be required to maintain confidentiality during investigation– Remember Apogee Case

• Witnesses may be required to maintain confidentiality after the investigation if there is a “substantial business justification”– Is there any such justification as it relates to investigations into health

and safety issues?• Supervisors (as defined by law) may be required to maintain the

confidentiality of investigations both during and after the investigation– Does this impact who should be a witness in these types of cases?

Investigation: Confidentiality

• Two issues to keep in mind during this time:– Allegations of health and safety issues may impact employees

especially employees who may already have anxiety or fears related to the workplace; employees may also feel compelled to share their health information

– Remote investigations may make it difficult to build rapport• So how do you build rapport to be able to investigate these issues?• How do you limit the negative impact that the investigation may

have on employees who may draw conclusions at the very fact that an investigation is being conducted?

Investigation: Rapport

You are interviewing a witness about a group of employees who attended a party outside work and may have tested positive for COVID-19 without notifying the employer. The witness states that she has substantial anxiety over health/safety concerns in the workplace and cannot answer your questions. She asks to be excused. What do you do?

Investigation: Interviewing Witnesses

Post-Investigation: Issues Related to Findings/Recommendations

• Are there additional considerations when determining whether to draft a formal written report, if you are investigating health/safety violations?

• Are there additional caveats that should be included as it relates to findings that address the “preponderance of the evidence standard,” but state that the findings are not related to public health guidance or government-issued mandates?

• If you are making policy violation determinations, how do you do so if there is no history of violating the policies and resulting remedial/corrective action?

Post-Investigation: Communications• Determine appropriate communications to complainant,

respondent, and witnesses.– How detailed should such communications be?– Will the communications create anxiety if shared with others?– If shared with others, could such communications cause legal

liability?• Will the seriousness of the violation impact which

communications are appropriate?• If the violation is systemic (e.g., facility-wide, etc.), would

that impact which communications are appropriate?

Takeaways• It is critical to understand whether a complaint requires an

investigation and/or whether it requires attention to remediating the particular health/safety issue.

• Due to the potential that the health/safety issue is widespread, it is important to: 1) maintain confidentiality during the investigation, 2) investigate cautiously, and 3) consider the impact that a written report and other decisions made in the planning of the investigation may have.

• In the current pandemic, conducting investigations should be done in a manner designed to limit the risk of potential negative impact on morale and operations.

Questions?

Thank You

Britt-Marie K. Cole-JohnsonPartner

Robinson & Cole LLP(860) 275-8279

bcole-johnson@rc.com

Abby M. WarrenAssociate

Robinson & Cole LLP(860) 275-8215

awarren@rc.com