Recent sporting events prove relevant for employers facing a return to work plan. Novak Djokovic, the No. 1 ranked tennis player, tested positive for COVID-19 during his Adria Tour in the Balkans, as did other players on the tour including Bulgaria’s Grigor Dimitrov. Djokovic’s coach, Goran Ivanisevic, who initially tested negative, also tested positive.
Djokovic released a statement saying that the tour was organized with the best intentions, as a charity event. Despite his apology and apparent remorse, the tennis community has criticized Djokovic for his lack of responsibility in going through with the tour during this critical time and for not following social distancing guidelines.
Specifically, there was limited social distancing on the Adria Tour, which was played to crowded stadiums, with players hugging and high-fiving each other and playing basketball. Social media posts also showed the players singing and dancing together in a jammed club the night before the event was cancelled. Many players have called for Djokovic to resign as ATP Player Council President.
Criticism of player behavior has not been limited to Djokovic. Controversial tennis star Nick Kyrgios called-out Alexander Zverev after videos emerged of Zverev partying while he was supposedly self-isolating. Zverev pledged that he was going into self-isolation after participating in the Adria Tour.
Return to Work Lessons from the Adria Tour Debacle
Sports is a microcosm of life, even during a pandemic. There are important human resources lessons to be learned from the Adria Tour outbreak that employers should take notice of, particularly as they urge employees to return to work in the pursuit of resumed normalcy.
#1 Have a Return to Work Plan with Safety as a Priority
Many employers are anxious to resume operations and have employees return to work/return to the office. While their desire to do so may be with the best of intentions, the reality is that sustaining operations is only possible if employees remain healthy. The Adria Tour debacle is a prime example of the results of a reckless reopening plan that fails to consider health and safety protocols.
It is critical, therefore, that employers develop and implement a sound return to work plan. Although each workplace will require its own particular needs and considerations, some common key return to work plans include the following components:
- Implementing employee health screening procedures.
- Developing an exposure-response plan.
- Providing personal protective equipment (PPE) such as masks or face coverings, gloves, face shields, etc.
- Providing adequate personal hand sanitizer.
- Deep cleaning and establishing cleaning procedures.
- Procuring supplies.
- Reinforcing good hygiene tips and other common-sense precautions, including cleaning and disinfection.
- Establishing physical distancing measures within the workplace to minimize close contact.
- Encouraging employees to work remotely when possible.
- Stagger work schedules, shifts and lunch/rest breaks to limit the number of employees in the workplace.
- Restricting non-essential business travel.
- Defining customer and/or visitor contact protocols.
- Monitoring Centers for Disease Control (CDC) and OSHA guidelines and developments.
#2 Enforce COVID-19 Safety Policies
Having a return to work plan is not enough to keep individuals safe and reduce the risk of infection in the workplace. It is also essential that employers educate employees about its policies, consistently monitor behavior, and enforce its policies, such as enforcing mask wearing and social distancing policies. Leadership must set an example. If the CEO does not adhere to the company’s safety policies others will take notice. The outcome will not be good. It may result in a culture of non-compliance on the one hand, or, on the other hand, a lack of confidence in leadership – as illustrated by the calls for Djokovic to resign as ATP Player Council President.
#3 It’s Hard to Control Employee Behavior
No matter how much employers police their workplace and encourage safe conduct, not everyone is going to cooperate. It is impossible to regulate employee behavior outside the office, which is clearly illustrated by Zverev’s willingness to break his pledge of self-isolation after being directly exposed to COVID-19.
#4 Guard Against Harassment and Backlash
Employers should take note of the backlash Djokovic has been subject to following the positive COVID-19 testing of several players. It is the same type of backlash employees may experience if they get infected and expose other employees to the virus.
In an effort to combat any potential harassment, employers should first understand that they must maintain employee confidentiality. Thus, employers should inform fellow employees of their potential workplace exposure. However, they must also maintain confidentiality under the Americans with Disabilities Act (i.e., without revealing the infected individual’s name unless otherwise directed by the CDC or applicable public health authority).
Second, employers should take steps to address any possible harassment and discrimination when they reopen. The EEOC’s “What You Should Know About COVID-19 and the American with Disabilities Act (ADA), the Rehabilitation Act, and Other EEO Laws” provides some guidance on this topic. An excerpt is provided below:
E.1. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)
Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.
E.2. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)
Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
#5 Be Prepared for Plan B
As we learned by the Adria Tour, good intentions cannot guarantee that COVID-19 will not be present in the workplace. The harsh reality is that it is impossible to control conduct, especially outside the workplace. Against this backdrop, employers must be prepared to shut-down workplaces quickly if there is a reoccurrence. A well-developed return to work plan will cover this possibility.
Both employers and employees wish to return to work, but if the return to work plan is reckless and haphazard the results could be disastrous, like Djokovic’s Adria Tour. Employers must carefully consider and implement health and safety guidelines when asking employees to return to work and understand their legal obligations. No matter what safeguards are implemented, employers must take into account that they cannot guarantee a COVID-19 free workplace, in part, because of human behavior. Further, employers should take preventative measures regarding the potential harassment of employees with COVID-19 and take appropriate action if such harassment occurs.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.