As states begin to reopen their economies, employers and employees alike are concerned about the safety risks.
Obviously the risks vary greatly from one workplace to another, and some states will issue rules or guidelines for reopening, so this Alert cannot go into the specifics for each type of business in each location. There are, however, some issues that virtually all employers should address.
Liability
Do you feel confident that you can reopen safely? There has been talk of enacting laws giving employers immunity from any COVID-19 related claims, but so far, no such law has been enacted.
If you reopen your business without an immunity law in place, you may be sued by those who claim your actions contributed to the deaths and injuries of themselves or their loved ones from COVID-19, so it’s important for you to be able to establish that you made the workplace as safe as reasonably possible for employees and for visitors, including independent contractors and customers.
Further, if work-related activity results in probable exposure to the virus, workers compensation may cover any COVID-19 related illness or death. Depending on your jurisdiction, there may even be a presumption that the worker contracted the virus on the job. It is, therefore, vital for you to maintain evidence of the safety measures you have taken in order to rebut that presumption.
Remember that federal law requires nearly all employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious bodily harm. You may have additional obligations to employees under contract or state law.
Screening Employees
Do you plan to screen employees for COVID-19 symptoms?
For example, will you take employees’ temperatures? According to the CDC, a temperature of 100.4 degrees or higher is an indication of a possible COVID-19 infection.
Will you require each employee to complete a questionnaire that lists each of the symptoms before they enter the workplace? The CDC says symptoms include cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, new loss of taste or smell, nausea, vomiting, and diarrhea.
If you do screen employees, you’ll need to create a protocol for when and how screening is done and what to do if someone is found to have a fever or other possible COVID-19 symptom.
Testing
Do you plan to test your workers for COVID-19 or for antibodies?
If so, will you test everyone or only people who have (or for antibody testing, have had) symptoms indicative of a possible COVID-19 infection? Can you even obtain the necessary number of tests?
If you do test, you must establish a written protocol for responding to a positive test result. The protocol should include workplace contact tracing, any required reporting to government entities, disclosure to coworkers and conditions for a return to work.
Privacy Concerns
How will you overcome any privacy concerns if you do test or screen employees? The EEOC has taken the position that employee medical information related to the pandemic is confidential medical information.
You should, therefore, draft a detailed written plan for how you’ll handle and keep confidential any health information you gather.
Wage and Hour Laws
Will you pay employees for time they spend being screened or tested? Some jurisdictions require it; others make it optional.
Discrimination Claims
If you’re not testing or screening all of your employees, you must create a written policy describing who will be tested or screened, based on non-discriminatory business reasons.
Examples include testing employees who have frequent interaction with customers or who are required by the nature of their positions to have more frequent contact with each other than other employees.
Telework and Scheduling
Should you continue to have all those who can work remotely do so? Some states have already indicated that those employees will be the last who are legally permitted to return to the workplace.
Can you put employees on rotating schedules to ensure social distancing? Or put them on flexible schedules so they avoid peak commute times on public transit?
Is there a way you can allow employees with a lack of childcare due to school and daycare closures to continue to work from home? Or can they work part-time?
Training and Enforcement
If employees are not properly trained and your protocols aren’t enforced, you may well be liable for resulting illnesses.
How will you train your employees to ensure they’re aware of your new health and safety protocols?
How will you discipline employees who don’t comply with your new safety protocols? You should have a written policy. At a minimum, you should notify employees in advance that they may be disciplined (up to and including possible termination of employment) for failure to comply.
Refusal to Work
How will you respond if an employee refuses to perform certain assignments due to safety concerns? Or doesn’t want to return to work at all because of concerns about COVID-19 in the workplace?
Safety Measures
Some of the safety measures you should consider include:
• Requiring personal protective equipment (PPE) for employees and visitors
• Ensuring adequate social distancing (do you need signs or floor markings showing the appropriate distance?)
• Physical barriers in areas where social distancing is not possible
• Cleaning and disinfecting protocols
• Reminders about the need for frequent hand-washing
• Providing hand sanitizer at convenient locations
Be sure to regularly check federal and state OSHA guidelines for your particular industry to make sure you’re in full compliance with the latest health and safety requirements.
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Remember too, that amid all these safety concerns and the new legal protections for employees that apply only during the pandemic (e.g., paid leave for certain COVID-19 related reasons), you must continue to comply with the same employment related laws you always have. This includes wage and hour laws, paid sick leave, family leave, anti-discrimination laws, laws against retaliation, and workers’ compensation obligations.
Please feel free to contact us if you any questions about your legal obligations as they relate to COVID-19 or other employment-law related concerns.
Photo by Philipp Berndt on Unsplash.jpg
