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Business Owners – Planning Can Help Prevent Employer Liability During Civil Unrest

Posted in Labor Law

My colleague Brendan Begley blogged last week about the risks employers face due to the threat of COVID-19 in the workplace.  As he noted, employees have the right to expect employers to follow city, county, and state orders and take reasonable precautions to minimize the risk to a known “direct threat” to health and safety.

Now, in the wake of the horrific death of George Floyd 10 days ago, the citizens of our nation have risen up to demand racial equality and an end to systemic injustice.  Our nation’s pent up frustrations have boiled over, and, unfortunately, some of that frustration is being expressed violently.

In the last few days, I’ve been hearing from business owners who were focused on steps to reopen after COVID-19, but are now worried about preventing potential destruction of property, theft, and violence.  While owners work to protect their businesses, they must also not forget to take reasonable steps to protect their employees from harm.

Does Your IIPP Address Violence and Theft?

While CalOSHA recently issued guidelines that said most CA employers would need to update their Injury and Illness Prevention Plan (“IIPP”) to address COVID-19,  employers should also review their IIPP to make sure it complies with California law with respect to violence in the workplace. IIPPs are required to outline various safety protocols and policies – and one of the subjects you must cover is violence in the workplace.   Employers must assess the types of hazards likely to be faced depending on the type of business.  The hazards presented by civil unrest may or may not be something a small business owner ever considered when drafting an IIPP.  (Don’t have one? The DIR has a free Etool – www.dir.ca.gov/dosh/etools/09-031/index.htm to help you create one!)

Remember, employers cannot retaliate against employees who oppose or report perceived safety hazards, unsafe practices, or violations of law in the workplace.

Safety First!

Just before I sat down to write this, I drove to my favorite local restaurant to pick up lunch. Many businesses in my city were closing, or open but in the process of boarding up windows and installing barricades, hoping to prevent damage if tonight’s planned protests turn violent.

If a business does decide to stay open in the face of planned or threatened protests or looting in your area, here is some common-sense advice:

  • Be sure to have an emergency action plan and communicate your plan to employees.
  • Make sure that employees have an escape route, or that they know they are free to go home if they feel unsafe.
  • Do not violate curfews that may be put in place, and do not ask employees to do so.
  • Reinforce the message that their health and safety is the number one priority, and especially for employees who may be in danger when they leave work to go home, consider sending them home early.
  • “Call 911” may not be a sufficient response to an emergency in the face of widespread riots and looting, since the police force will likely already be out in force but may be overwhelmed.
  • Make sure employees know that they are not expected to, and should not, attempt to interfere with looters, or put themselves in harm’s way, or violate curfew. Lives cannot be replaced.

Please, stay safe and take care of each other. Don’t hesitate to call your Weintraub Tobin employment advisor if you need guidance or assistance during these unprecedented times. We are all in this together.