An old client gave me a good karma call (otherwise known as free consulting). She wanted my thoughts on how they could minimize the potential litigation and discovery cost of the inevitable workers comp and personal injury claims after employees contracted Covid-19 after returning to in person work. The best safety, sanitation and social distancing work practices will only minimize how rapidly or widely one asymptomatic infectious employee will impact others in their ‘work Quarantine Gang’. Any time multiple employees have permanent disabilities or deaths that might be related to work conditions there will be litigation. My response focused on preservation and accessibility of the company’s reopening process to minimize the discovery response effort and maximize the support of ‘best effort’ arguments. Unlike my Lieutenant Governor, I am not an infectious disease or safety expert, so I will not comment on actual employee guidelines or practices. After the call, I decided to organize my thoughts below:
- Create a central, online repository where the reopening team can store and share all relevant ESI. If most of your ESI already resides within some form of Enterprise Content Management system, users could leverage a retention category/tag instead (although my experience with user compliance for this model has not been good). Companies with strong adoption of Teams or SharePoint groups could leverage those for automatic preservation and versioning of documents. Relevant ESI can include:
- Policies, procedures and all communications to employees on pandemic safety practices.
- Dated copies of all external requirements, guidance or reference materials relied upon for initial and revised practices. Covid-19 response guidelines have been a moving target for the last six months. The stakeholder team must identify and preserve the CDC, WHO, medical studies and other resources available when key decisions on masks, elevator limits, etc. were made. Post pandemic reconstruction of the decision context will be difficult or impossible.
- All logs for employee work releases, safety training, employee access/temperature, daily compliance checks, employee status/sick/infections, contact tracing/response efforts, etc. It is critical to be able to present clear and overwhelming evidence of the company’s efforts toward a safe work environment.
- Employee questions, concerns or complaints along with management responses must be preserved. So many matters start off with an employee saying, “I told them that this was wrong…” Too many ECA searches turn up these employee concerns in their supervisor’s Recoverable Items Folder.
- Identify all key personnel involved in executive to site supervisory decisions. This list will be one of your first interrogatory questions, so you might as well get it ready. Remember that you will lose key people temporarily or permanently to Covid-19. So your players list must be able to document the timeline of changing roles.
- Executive Authority – Who in the C suite is on the hot seat for decisions that do not rise to BoD authorization?
- The Stakeholder Team – This should be a formal team charged with assessing the evolving issues, making policy/protocol recommendations for authorization and monitoring the overall effectiveness of those practices. How often to they meet? Since they are probably meeting remotely, do you record the Skype/Zoom meetings or is someone responsible for meeting notes and action lists?
- Site/Department response leads – This is the director or manager for a given in person work site responsible for implementing the reopening protocols, responding to employee questions/concerns/complaints and ongoing reports/escalations to the Stakeholder Team.
- Site Safety Personnel – Anyone responsible for enforcing mask policies, PPE disbursement, sanitation efforts, Covid-19 testing results, employee health questions/temperature checks, etc. Defending the company’s efforts will require effective contact tracing within isolation groups.
- Implement proactive legal holds where deemed appropriate based on prior lists of ESI sources and players.
- Have a third party like your auditors, external discovery counsel or discovery consultant conduct a discovery response drill to refine the organization and composition of your reopening repository. It is better to get early feedback than find a blind spot or poorly chosen wording during a deposition.
The above is my broad generalization. Every corporate vertical and site will have different requirements, exceptions or enhanced risks that need to be accommodated. So what unique ESI or playbook documentation are you keeping?
Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.
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