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08/20/2020

Strategies for Title and Settlement Companies to Keep Staff and Customers Safe

 

Across the country, nearly a quarter of all employees have returned to the office in 10 of the largest metropolitan areas. And as more employees return back to the office, companies must ensure they have the proper policies and procedures in place to remain compliant despite a lack of uniformity and inconsistent guidance. The landscape can be confusing enough for an employer with a single location, but for those operating across multiple states, or even across county lines, monitoring what is required can be quite the endeavor. Business owners and managers must consider an assortment of employment issues affecting health and operations policies as employees transition back to the office. Liability is a major concern, beginning with what to do if an employee or customer gets sick and how to screen people entering the office.

While many businesses across the United States closed due to the COVID-19 pandemic, the title and settlement industry remained resilient. An ALTA survey found that 98 percent of respondents reported their offices remain open during the crisis. Additionally, only six percent of those surveyed said they’ve temporarily ceased operations at any of their business locations. Title and settlement companied are deemed “essential businesses” by the U.S. Department of Homeland Security and allowed to remain open. Because of this, the issue is more about ensuring the proper policies and procedures are in place to keep everyone safe and healthy.

To develop a plan of action, Elliot Griffin, an associate with the law firm Ballard Spahr, encourages business leaders to establish a team or task force to oversee planning, execution and monitoring. This group will need to conduct a COVID-19 risk/hazard assessment and develop a reopening plan, establishing monitoring and update protocols and documenting the process.

“The task force should look at things from an employee’s perspective from start to finish,” Griffin said. “Things to consider include whether you have a lot of employees taking public transportation, if you’re a tenant in a commercial office, how are employees getting in and out of the building, how will they get to bathrooms, while mitigating any exposure to COVID-19.”

While companies don’t want to think about it, Griffin said the reality is that a company may have an employee test positive for COVID-19. A business will want procedures in place to limit the possibility of infection and to notify employees and customers if an exposure occurs.

OHO Top 10 TipsPreventive Policies and Protocols

  • Social distancing: Griffin said employers should revisit their employee handbook and develop social distancing protocols for the workplace. Social distancing protocols can address a broad range of issues. For example, employers should consider engineering controls and administrative practices to provide at least six feet of space among workers, whether in motion or stationary in their work areas. This may include reconfiguration of workspaces, erection of barriers such as Plexiglas shields, marking floors for directional movement and spacing, and limiting the numbers of individuals who can congregate in common areas. It also may include new schedules and staggered shifts, different and staggered breaks and meal periods, and greater use of virtual meetings.
  • Hand washing: Employers should make sure that employees returning to the office have access to facilities to allow for regular hand washing, according to Griffin. If soap and water are not available, hand sanitizer (with at least 60% alcohol content) is acceptable as a substitute.
  • Cleaning and disinfecting: Employers should establish updated and enhanced cleaning and disinfection protocols, particularly for high-use and high-touch areas. Griffin said this may be done through the employer’s regular workforce and/or through outside vendors. It may be necessary to hire additional staff or to expand cleaning contracts. Some public health orders mandate consideration of janitorial staffing.
  • Workspace and movement (entry, exit, elevators, common space): For employers in leased space and/or in buildings with shared common space, such as elevators, halls, lobbies, etc., the employer should consult with the landlord or building management about how cleaning and disinfection will be handled.
  • PPE (face coverings, gloves): Companies will need to think through whether face coverings will be mandatory, Griffin said. Face coverings or shields, respirators, gloves and other personal protective equipment (PPE) may be mandated, depending on the state and industry. For example, some states, including Pennsylvania and New Jersey, have adopted public orders mandating face coverings, both for employees and for customers. Others have issued guidance on what are appropriate face coverings and how to make them. Usually, the employer is responsible for providing PPE. Some workers may have health or religious objections to the use of PPE, giving rise to the need to consider accommodations under the ADA or Title VII.
  • Scheduling, breaks, shifts, interaction: Griffin suggested modifying the work schedule to ensure only a portion of staff is in the office each day.

“Companies that have offices across the country may want to have a workplace coordinator on site,” Griffin recommended. “That person should have an open-door policy for employees to bring concerns.”

A businesses’ COVID team will need to regularly review public orders and guidance from CDC and OSHA. Additionally, there are media and public relations concerns. A company’s reopen plan and how it plans to bring employees back to the office may be considered newsworthy by local media.

“You’ll want to think about how you’ll respond to media inquiries,” Griffin said. “Internal PR strategy is equally important in how you are communicating with employees. You need to be transparent in all the steps you are taking to prioritize their health and safety.”

Liability Mitigation

  • Third-party agreements: Title and settlement companies may use staffing agencies. Griffin said employers will want to work with these agencies to assess what their requirements will be.
  • Lease agreements: In addition, if an office is in a building with a lot of common space, “you’ll want to look at those agreements and determine what your landlord is responsible for and what measures they are instituting,” Griffin said.
  • Insurance: Companies may get workers’ compensation claims from employees saying they contracted COVID in the workplace. In some states, employee infections may be covered. Griffin said companies will also want to review coverage under their general liability policy and assess what’s covered if any customers, vendors or third parties who enter your office claim to have contracted COVID there.

Shannon Farmer, a partner with Ballard Spahr, said one of the main questions the law firm receives is about liability if an employee contracts COVID in the office. She said several wrongful-death lawsuits have been filed against employers by estates of employees, claiming negligence and accusing employers of allowing employees to work without adequate safety measures.

“Whether those cases go anywhere or are barred by worker’s compensation statutes, there are other areas of liability,” Farmer said.

These relate to the general OSHA Standard of Care, which says employers have a general duty to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has not yet adopted mandatory COVID-19 standards.

Protective Personal Equipment

For the title and settlement industry this mainly involves masks and gloves. Whether a company must require employees to wear masks will be determined by local and state guidance, according to Farmer. The CDC only recommends face coverings. If a company requires masks, this becomes a respiratory program under OSHA and must adhere to its rules.

Considerations include:

  • Whether employers should (or must) provide?
  • What kinds of PPE (gloves, shields, face coverings) will be mandated?
  • How PPE will be procured
  • How much PPE is enough?
  • Will PPE be required for just employees, or for vendors, clients and customers too?
  • What if limited quantities are available?

“You need to be realistic in thinking about what you’re going to require,” Farmer advised.

CDC COVID Fact SheetScreening and Testing Programs

Employers may consider implementing temperature screenings, health questionnaires and/or infection or antibody testing for COVID-19 (if available). Screening, if done, generally should consider all persons entering the workplace, including employees, contractors, vendors and visitors.

Some states, under public health orders, require screenings, especially after a positive COVID-19 incident in the workplace. Any screening and testing measures or health assessment policies should be implemented thoughtfully, with consideration of issues.

related to the Americans with Disabilities Act (ADA), including confidentiality of medical information, as well as other privacy concerns. Farmer said employers must have separate files and limit access to those on a need-to-know basis. There also may be an OSHA requirement to retain records for up to five years.

Any testing or screening measures should be applied to all employees consistently, to prevent any inference of discrimination. If an employee is singled
out for testing or questioning about symptoms, the employer must have a “reasonable belief based on objective evidence” that the employee may have the disease. Employers should also be mindful of federal and state anti-discrimination laws, which may apply. Also, some state agencies, including Pennsylvania, have advised employers that its state anti-discrimination statute may be interpreted more broadly than its federal counterpart.

Farmer said Ballard Spahr has a client developing a platform where employees can login, record their temperature and answer a couple of questions.

“I would say a lot of employers outside of large companies that have medical facilities onsite are going to have people do self-screening,” Farmer said.

Companies will need to determine what they expect employees to report. In addition, Farmer said employers will need to assess whether time spent undergoing screenings (or waiting in line for screening) will be considered compensable time under wage and hour laws.

“Generally, under federal law, the answer is probably going to turn out to be no,” Farmer said. “This is due to the way federal law looks at what’s called activities as opposed to things that are integral to the work. However, state laws are different. Some states have ruled going through security checks can be applied to hours worked.”

Employers also should establish clear guidelines for when employees will be sent home based on screening and when they can return to work. The CDC has issued guidance on these issues.

Finally, Farmer said there should be consideration given to who will conduct screenings. This may be done by staff or an outside vendor or a combination of the two. Also, the configuration of the screening location(s) must be thoughtfully planned, particularly in light of social distancing protocols. High-traffic screening locations also merit special cleaning and disinfection procedures.

Sick Employees

Employees exhibiting COVID-19 symptoms (fever, cough, shortness of breath) should immediately be separated from others and sent home, according to the CDC. Sick employees should not be permitted to return to work until they have met the CDC’s latest criteria to discontinue home isolation. Employees should stay at home at least 10 days after symptoms first appeared and three days since recovery.

“The CDC also advises that employers do not need a doctor’s note or COVID test for employers to return to work,” Griffin said.

Signs/Postings

Businesses are encouraged to post reminders about the new policies in the workplace, such as reminders to wash hands and social distance, one-direction hallways, and breakroom/lunchroom etiquette.

OSHA and the Centers for Disease Control and Prevention (CDC) have made available a wide variety of signs that can be posted in the workplace to remind employees about health and safety protocols. Either of these or workplace-specific versions should be printed and displayed prominently throughout the workplace. The Department of Labor also requires a poster advising employees of their rights under the Families First Coronavirus Response Act.

What Are Title Companies Doing?

Craig Haskins, chief operating officer of Knight Barry Title Group, said his company is taking a phased approach to returning employees to the office.

“Basically, we are not changing,” Haskins said. “We have offered employees the option to work from home. That’s been the number one question on our calls as states reopen.”

Haskins said about half of Knight Barry’s 400 employees has worked exclusively from home, while the other half has worked hybrid hours.

“It’s worked, so we are not rushing to bring everyone back,” he added. “We’ve decided if an employee is effective working from home, then we will continue to let them until we go into another phase. We’ve eliminated non-essential meetings and minimized in-person sales calls. Our sales team has done a great job getting creative to continue engaging customers.”

Mary O’Donnell, chief executive officer of Westcor Land Title Insurance Co., says her company has taken the same tactic. The national underwriter has coined it the “Office Optional Approach.” O’Donnell said the company has held virtual town halls to discuss “reoccupying” the office.

“Communication has been the ultimate key,” she said. “We wanted to be sure that employees knew that if one of their managers elected to come back to the office, they shouldn’t feel peer pressure that they need to return as well. On the flip side, if an employee comes back, we don’t want the manager to feel obliged to come back. We’ve worked hard on being totally open about expectations.”

To ensure proper social distancing, Westcor has removed chairs from conference rooms and elected to not reopen break rooms during the first phase of reopening.

“This is not a one-size fits fall approach,” O’Donnell said. “Even within counties, the approach is different.”

Because of regional differences, Westcor gives local managers freedom to determine how they want to reoccupy their offices through understanding what’s happening in their areas and listening to staff.

Haskins added that Knight Barry, which operates in several states, said it’s important to be flexible with staff working on the office.

“Staff is our number one asset,” Haskins said. “If they aren’t comfortable coming to work, then we don’t have a business.”

Jeremy Yohe is ALTA’s vice president of communications. He can be reached at jyohe@alta.org.

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