COVID-19 Deaths: How Should An Employer Handle When It Enters the Workplace?

It is known by a variety of names, "Coronavirus", "Corona", "COVID-19", or "2019 novel coronavirus". Whatever you choose to call this dangerous virus...one thing is true. This pandemic is real and it is affecting people across the globe. The novel severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) first emerged in December 2019 in Wuhan, China, and rapidly grew into a global pandemic. For many US employers, this virus ushered in a new area of concern for the workplace... employee deaths. Never before have I or any of my cohorts processed so many death benefits in one year.

Employers are not only having to deal with sustaining jobs, juggling employee leave around illness, and childcare. But what has been happening silently in the background are employee deaths. We are all aware of reports around assisted living facilities and or hospitals where there is a high-risk factor for work-related exposure and or death among employees. But what about the average employee who contracts the virus from a family member or neighbor, maybe even an unsuspecting asymptomatic co-worker. This topic alone could be an article by itself but let's stay focused. I'm not to going talk about politics or whether reopening is right or wrong. Nor will this article focus on whether or not an employer-provided reasonable personal protection equipment (PPE). All may have its place in this subject matter along with other factors (e.g. individual responsibility and accountability). But let us focus on the key actions an employer will encounter when such an incident takes place. What should human resources do?

Though the actual numbers of work-related deaths are still foggy. As of October 3, 2020, the CDC reported a provisional count of 202,739 deaths reported in the United States. Of those, almost 6,000 were reported as work-related deaths. The 3 highest cause of deaths in the U.S. There is not one employer who wishes to deal with such a situation. But when it crosses the threshold of the workplace, how should an employer handle such a sensitive, delicate, and crucial situation. The learning of an employee's death hits you right in the gut regardless of the reason. It is generally the supervisor or manager who first learns of an employee's fate. Then it trickles to human resources or benefits.

1. Incident Reporting: every employer regardless of size should have some form of incident reporting. Employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses under OSHA regulations. In addition, by now, all employers should have some form of COVID-19 tracing, tracking, and reporting in place. Employers must use this to prove that they have conducted "reasonable and good faith" inquiries into each incident. These are generally the first action item implemented to investigate the cause and nature of the incident, who was affected, was the company's safety protocols followed, and the impact of the exposure.
2. Workers Compensation Reporting: all employers regardless of size should have some form of workers compensation insurance. This is regulated by states and some states require as low as 1 employee for workers compensation insurance. Check with your state's workers compensation commission for more information. During this pandemic, there has been a battle between employers and workers' compensation carriers paying on such incidents. Some carriers have gone as far as to drop employers for high volume in claims during COVID. But the real point here is that after an incident report is submitted, an employer is responsible for submitting to workers compensation if there is a "possibility" that the employee was exposed or tested positive to COVID during the course of their work. Employers should not be so concern about their experience rate going up when they should consider the possibility of a wrongful death lawsuit. Always error the side of caution. Let the worker compensation investigator do their due diligence and make the decision, not you.

3. OSHA Fatality & Hospitalization Reporting: In the midst of the chaos, OSHA has struggled to roll out clear administrative guidance around reporting fatalities due to work-related COVID-19 cases. It hasn't been until recently, as of September 30th, that more stringent guidance has been issued due to the number of complaints related to employee COVID-19 exposure, hospitalization, and or death. In a USAToday article, "nearly 4,000 coronavirus-related complaints were filed with federal and state OSHA offices between Feb. 24 and April 6." Employers are now required to report all applicable COVID work-related hospitalization and death (worth printing and reading) regardless of whether a case is ultimately determined to be work-related. OSHA offers an online reporting system for most states. OSHA requires employers to report the fatality within eight (8) hours of "knowing" both that the employee has died, and that the cause of death was a work-related case of COVID-19. If your company is experiencing a significant loss of employees due to COVID-19 you should prepare to have an enforcement investigator call or visit your worksite or office for further inquiry.

4. State Public Health Agencies Reporting: Depending on the industry you are in, as an employer you may be required to report all COVID-related incidents to a state public health agency (i.e. department of behavioral health, department of health, and human services, etc.). These agencies have their own reporting requirements and it is important that you have knowledge about each requirement. The OSHA reporting will ask if you submit to the required state agencies. Failure to report may affect, grants, contracts, or incur penalties and fees. Remember, receiving any state government citation is good evidence for future lawsuits by an employee and or his/her family.

5. Employer Benefits: By this time, a spouse or family member will have reached out to your benefits or HR team inquiring about Life insurance policies and or retirement plans. We all know that most employers offer company-paid life insurance, no matter how minimal. Employers should be responsive to such inquires. Generally, the family is trying to make funeral arrangements and those funds are necessary to facilitate those arrangements. Qualified benefits that offer beneficiary payouts to designated individuals are pension plans, retirement plans, stock options, and profit-sharing plans. In addition, life insurance and supplemental life plan also pay designated beneficiaries. There are some challenges to these payouts when employees do not designate beneficiaries or divorce. Employers must be vigilant in ensuring that all employees designate beneficiaries (even if they leave to their children or a charitable organization). HR professionals should never get involved in family disputes over these payouts. I strongly suggest directing those individuals to the carriers. They are well equipped to handle these types of situations. I generally encourage employees to review beneficiaries during Open Enrollment periods or during Quarter End communication around IRS matters. Don't forget that you have terminated the employee from benefits and in your HRIS system in a timely manner. For most employers, this is a workflow that will trigger Benefits/HR to act on the above mentioned.

6. Final Pays and Leave Balance Payouts: This category can be a tricky matter regarding any deceased employee is their final payout and leave balance payout. It can be a sizeable amount of thousands of dollars. Employers will notice that this is the first matter of business that a family will call about...multiple times. It can be pretty straight forward for a legally married spouse. But what do you do when it's a girl/boyfriend, unmarried partner, parent, or sibling who is reaching out. HR professionals can find themselves getting emotionally caught up in the stories and grief of the individual on the phone or who show up to the office. Understandable, we are human. But remember your legal obligation. These individuals must be legally identified as the rightful heir to any of the decease's income, A couple of known practices by smaller employers are mailing the funds to the decease's last address on file if you issue a hard check. If you do this, please do it Certified Mail. Another is to run the payroll as normal and allow for direct deposit into the employee's bank account on file. This will put ownership on the bank who has its own policies in this matter.

Should these ways fail and or there arise a dispute over the deceased estate due to lack of a Will, then it becomes a probate matter and these funds will be required to go into an escrow account for the estate. In this matter, you will have to be patient and wait for the legal Administrator to direct you. There will be times where distressed love ones may threaten legal action. Don't take this personal. No need to be anxious or reactive. You welcome that path. Lastly, you may find that no one will reach out legally or out of curiosity. Final funds sitting more than 12-months or more (stale checks) should go through the escheatment process to deliver those funds to the State Unclaimed Property division.

7. Employer Compassion and Communications: All employers should have in place some type of communication plan to address this type of news. It doesn't matter your size. Take time to lay out how you will handle this news of an employee's death with the employee's family, co-worker, and remaining staff. Employees and family members want to hear from the C-levels. Don't leave this just to the employee's supervisor. The employee gave a significant share of their life to support the company's goals and mission. Do treat this lightly or with a cold shoulder. This can impact how the family members perception of the company's responsibility in the death of their loved one. Remember this biblical scripture (Proverbs 15:1,2), A gentle answer turns away wrath, but a harsh word stirs up anger. The tongue of the wise adorns knowledge, but the mouth of the fool gushes folly. Use this time to gently redirect your staff toward the mission. This time is not about your company. It is about people. Leave your well-crafted speech for later. Show compassion. What if it were you?

I don't know about you, but I have had my share of employee death this year. Some were due to COVID-19 and some for other health conditions. But it was still a loss of human beings. It has taken a toll on my emotional well-being along with employees and or their family members still dealing with illness and or child care issues. I encourage HR professionals to engage in their own self-care and encourage your employees to do the same. Remind them of any Employee Assistance Programs (EAP) you have with your healthcare benefits. Use it yourself. Don't have an EAP program, Here are two helpful links to online resources; (1) HelpGuide and (2) Self Help Tools. This article is not all-inclusive. I know I missed a lot but I wanted to share the key items.

Be well. Be safe. Be bless.