The Coronavirus pandemic has undoubtedly affected the lives of people around the world across demographics. 2020 was a year many wish to forget, with many hardworking individuals losing their jobs and livelihoods during this pandemic. Small and medium businesses are being hit especially hard, faltering one after the other like domino pieces as losses force them to shut down.

For businesses who are still clinging on for dear life, some will go to desperate lengths to stay open and in operation for as long as they possibly can, concealing Covid-19 cases within their workplaces to do so. Large businesses are not exempt from this temptation as well, out of fear that a positive case may cause stigma and further losses.

Professor Kevin Crow, Assistant Professor of Law and Ethics at the Asia School of Business and International Faculty Fellow at MIT, is also active in legal consulting and international impact litigation and is also an affiliated researcher with Columbia University’s Freedom of Expression Initiative.

He recently spoke with BFM: The Business Station, a leading Malaysian radio station, to discuss these ethical dilemmas and provide businesses and employees with solutions on how to navigate when someone at work tests positive:

BFM: What is the impact of hiding positive Covid-19 test results among employees, especially from a legal point of view?

Prof. Crow: There are many impacts from many points of view. There are the obvious economic concerns, reputational concerns, concerns on productivity, effects on other employees and legal concerns. From a legal point of view, there are concerns that are attached to contractual obligations between both the firm and employee; all of these can be implicated in lack of transparency and a lack of disclosure.

What duty of care does a business owe its employees as well as its customers?

A duty of care, in general tort claims, suggests that businesses have to take whatever action is considered to be reasonable by the society under the circumstances. There are a lot of factors that might come in to play there. You could consider factors like sector, industry, business type etc. Would a reasonable business of this sector or industry have acted as this business did? That is sort of the general standard to take into consideration, in any kind of tort claim.

With that in mind, if one of the main drivers in hiding the results is concerns about profit and loss of business, could you make a case for why it is better to be more transparent rather than be secretive about the health status of your employees? Because I think that tends to be where a lot of people are coming from.

Yeah sure, I guess I’m a lawyer, so I can make a case for anything. (chuckle) It’s important to first look at an entire social and economic system and not to place all the blame on economically strained businesses. It needs to be attractive to be transparent. Governments play a large role in creating that attraction through both punishment and reward.

The most obvious reason or case for transparency regardless of political circumstances is an ethical one: you could spread harm to others, both within your business and within the broader society if you hide it. There are also two obvious economic reasons that flow out of that: spreading the virus within your business harms your human capital within your business and spreading it to society, harms the broader economy of that society, therefore it harms your business as well.

How does non-transparency affect customer sentiments and their sense of loyalty towards brands?

Research shows there’s a pretty strong correlation between transparency and customer loyalty. So, non-transparency conversely reflects poorly. Those kinds of reputational harms affect customer-facing businesses more than B2B businesses.

Overall, what are the best practices employers should use when they do find a positive case in their business, especially among their workforce?

The same things that everyone has been saying. First, regular testing. Second, when someone does test positive, multilevel contact tracing. Third, isolate both affected and potentially affected employees. And finally, throughout the process, support everyone so that there is no fear of coming forward with a positive test rather relevant information.

Could you elaborate a little on what sort of support employees need when it comes to such circumstances?

First, they need to know that it is a good thing in the eyes of the employer that the employee comes forward. There can’t be any kind of element of punishment or fear associated with someone coming forward. Secondly, depending on the circumstances of the employee, they will need varying degrees of support for quarantine, or for other measures they need to take. So, do they have childcare responsibilities? Do they have elderly relatives at home? Employees need holistic support, and employers should be cognizant of that. Finally, and relatedly, employees shouldn’t be punished economically or otherwise for coming forward.

If you work in a company that is hiding positive cases and you are aware of that, what can you do to keep them accountable?

The answer is different whether you work in management or if you are an employee reporting to management. If you work in management, you should make it an issue if it isn’t already an issue. If you don’t have contingency plans already in place, you should bring this up with colleagues, even if it annoys them or if they don’t want this discussion to occur. History will most likely smile on your actions, so being temporarily unpopular perhaps doesn’t matter so much.

On the other hand, if you don’t work in management, a lot depends on the culture and the degree of trust within the firm. A grassroots organization with co-workers can raise awareness of detrimental impacts of hiding positive cases. Depending on what is important to your management, you could emphasis economic and ethical harms, legal and political repercussions – all of these are arguments you could make.

What can the government do in order to get companies to be more responsible and open when it comes to reporting cases?

They need to make it more attractive to do so. So, they have to provide support, both financial and logistical. In the long term, it is much more expensive for the government to discourage businesses from transparency through cost-saving measures than to incur the short-term costs by providing generous support to businesses that have to temporarily close.

If there no support and closing is a big fear, then non-transparency is more likely to happen. The best way to encourage responsibility is to make responsibility attractive and to make irresponsibility unattractive.

Sharpen Your Understanding of Ethics and Corporate Accountability

Professor Kevin Crow is a highly experienced educator with a wealth of knowledge in international law, constitutional law, economic law, and corporate law. He has taught at the University Halle-Wittenberg Law School in Germany and has practiced international criminal law with NGOs based in Cambodia and France prior to joining ASB. He is also an affiliated researcher with Columbia University’s Freedom of Expression Initiative.

In May 2021, Prof. Crow will be teaching a course of on Ethics and Corporate Accountability. The interactive, discussion-based course is focused on teaching managerial responsibility for those who are faced with tough ethical dilemmas and also discussing legal and ethical thought when it comes to difficult business decisions. The courses will be offered digitally on 27 – 28 May and 2 – 3 June, 2021.

About the ASB Iclif Executive Education Center
The Iclif Executive Education Centre at the Asia School of Business offers cutting-edge and action-oriented Executive Education programs that cover the key areas of Corporate Governance, General Management, Leadership, and Finance and the Global Economy.

For more information on our programs, please visit: https://asb.edu.my/executive-education