As employers begin looking beyond the immediate effects of the COVID-19 pandemic and start thinking of bringing people back to work, they will be wise to realize the new virus means permanent changes related to their obligation to provide a safe workplace.
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Christopher Sutton, an attorney in the Denver, Colorado, office of Perkins Coie LLP, advises and defends employers on matters related to the Occupational Safety and Health Administration (OSHA), and he says it’s a new day in terms of keeping workers safe.
Employers must “understand the COVID virus is here and will be for the foreseeable future,” Sutton says. “Companies should establish a plan.”
While the Occupational Safety and Health Act (OSH Act) doesn’t reference the coronavirus or COVID-19 and no specific regulation addresses it, the Act’s General Duty Clause requires employers to provide a workplace free of recognized hazards. In March, the virus was formally identified as a recognized hazard in the workplace, meaning employers are obligated to take steps to prevent employees from transmitting the disease at work.
OSHA has been issuing various documents in recent weeks, including an enforcement plan released April 13 intended as guidance for its area directors as they prioritize complaints about workplace exposures. The guidance also lets employers know what they can expect in terms of agency inspections and enforcement.
Sutton says OSHA is “classically and chronically underfunded,” and there is no way the agency can inspect all the facilities where credible complaints have been made. “This is a monster in that respect,” he says, but employers are no less obligated to take steps to keep their workplaces safe.
No Escape
Employers need to evaluate the nature of the coronavirus hazard in their workplaces, and they need to understand that it is pervasive. “There’s no employer that will escape the impact from the coronavirus,” Sutton says.
Decisions on what steps to take will have to be made case by case, but Sutton says examples of steps to incorporate in a plan may include screening employees for fever, putting out questionnaires, testing employees for the virus on a regular basis, preventing anyone testing positive from entering the workplace, sending infected workers home, doing contact tracing within the workplace, and educating employees.
Employers also may need to institute engineering controls, such as installing the plastic screens many stores are using to protect checkout clerks, Sutton says. Other measures may include enforcing six-foot distance rules and requiring face masks.
Employers also will need to have plans for different kinds of employees. For example, a healthcare worker in an employer’s on-site clinic will need a different plan than another employee in a different job.
“The real issue that people haven’t grasped yet fully is—whether or not the transmission occurred at the workplace”—the employer must determine whether it took reasonable measures to prevent it, Sutton says.
If not, the employer will be dealing with a work-related injury that—depending on the type of employer—will have to be reported on an OSHA 300 log, which the agency uses to evaluate the safety of a workplace, understand industry hazards, and implement worker protections. A workplace-related case of COVID-19 also could become a workers’ compensation claim, he says.
Putting an effective plan in place can help employers stay in operation by not losing employees to sickness or quarantine and can keep workers’ compensation insurance rates down, according to Sutton. An employer’s “bottom line is going to require it,” he says.
Julie S. Lucht, an attorney with Perkins Coie LLP in Seattle, Washington, also notes that some states are putting in place government-mandated restrictions to mitigate the risk as employers begin to reopen, and those will need to be incorporated in an employer’s policy related to protecting against the virus.
Relaxed Enforcement
In addition to OSHA’S April 13 enforcement plan, the agency released a policy on April 16 outlining discretion in enforcement of agency standards when employers act in good faith during the COVID-19 crisis.
“In light of the coronavirus disease 2019 (COVID-19) pandemic, OSHA understands that some employers may face difficulties complying with OSHA standards due to the ongoing health emergency,” the memorandum states, adding that business closures and various COVID-19-related restrictions in some ways make compliance not feasible or even pose an unreasonable risk.
The memorandum says that when employers are unable to comply with certain OSHA standards but have made good-faith attempts to comply, the agency “shall take such efforts into strong consideration in determining whether to cite a violation.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.