March 20, 2020
Questions from employers and employees about coronavirus (COVID-19) pandemic are multiplying almost as fast as the virus itself. Employers need to rely on a combination of authoritative legal and medical advice, and their own common sense, to keep employees safe.
Guidance issued almost daily from the Centers for Disease Control (CDC), the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) and other sources, reveal the wide scope of employment issues caused by the pandemic.
A good place to start to understand an employer’s basic legal obligations is found in the Occupational Health and Safety Act. Employers are obligated, the law states, to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
The word “recognized” plays a key role in the current situation. On a webpage dedicated to COVID-19, OSHA points out that its standards, including those dealing with personal protective equipment and respiratory protection, “require employers to assess the hazards to which their workers may be exposed.”
Hazard levels vary from one employer to the next, as well as for different jobs that your employees perform. However, if most of your employees work in relatively close proximity to each other, it wouldn’t matter much that some deal more directly with the public and some stay in the back office, because there’s a risk that one employee will spread the virus to another. That means that your hazard assessment must include the danger that your employees pose to each other.
OSHA has placed jobs and workplaces into four COVID-19 exposure risk categories, ranging from “very high” to “lower.” As you’d expect, the highest risk categories are for jobs such as health care providers who come into regular contact with people who have, or are suspected of having, been infected.
Employees under “medium” exposure risk are those “with high-frequency contact with the general population,” such as in a retail sales environment. The “lower” risk category involves “employees who have minimal occupational contact with the general public and other coworkers, such as office employees.”
Appoint a COVID-19 Czar
How specifically should you be responding to the COVID-19 pandemic? Before diving into the sanitary and legal matters, establish an organizational structure fit to meet the challenge. Appoint a COVID-19 response czar.
In addition to determining and taking the necessary steps to assess and mitigate the risks and address problems that arise, your COVID czar needs to be your point person in communicating with employees. Workers at all levels of your organization need consistent direction and responses to their questions. Ideally the czar will anticipate questions and answer them proactively.
The easiest questions to address are how employees can minimize their chances of becoming infected (washing their hands frequently, etc.). But it’s important to be sure that the resources (for example, soap) are on hand for them to follow those directions, as well as sufficient custodial services to keep the workplace as virus-free as possible.
It’s not too soon to make policy decisions about arranging for telework, eliminating non-essential travel, extending paid leave benefits, and a host of other issues that may arise, if a COVID-19 outbreak occurs in your area. The key is striking the right balance between possibly erring miles too far on the side of caution (thereby undermining your operational capacity) and putting employees at risk.
Use Facts, Shun Rumors
Grounding your policy decisions in reliable threat assessments by respected organizations such as the Centers for Disease Control (and not the most alarm-generating local news stories) is the way to go. It’s also important for employees to understand the basis upon which you’re making decisions affecting their jobs, pay, and health.
Click here for some advice from the CDC on what businesses and employers can do now:
Sound legal advice is critical since a host of labor laws and regulations come into play, including the Equal Employment Opportunity Act, the Fair Labor Standards Act, the Americans With Disabilities Act, the Family and Medical Leave Act, and HIPAA. Labor law firms are busy dispensing guidance on many COVID-19 related questions.
Here are a few Q&As to give you a sense of current concerns — but contact your own employment attorney or HR advisor for complete guidance appropriate to your unique circumstances:
HR Question Sampler
Q. One of my employees has tested positive for COVID-19. Now what?
A. Not only should you keep that employee away from work but you should send other employees who worked closely with the infected employee home and ask them to stay away for two weeks. That’s the amount of time needed to determine whether they were infected, as symptoms can take that long to manifest.
Q. Would an infected employee, who is likely to have been infected at work, qualify to make a Workers Comp claim?
A. Probably not, since getting the infection was not caused by a hazard specific to the employee’s job, like being contaminated by a toxic chemical used in connection with that specific job.
Q. Is an individual affected by COVID-19 eligible to receive unemployment compensation (UC)?
A. Maybe. The U.S. Department of Labor (DOL) issued guidance on this situation. The DOL has stated that the unemployment Insurance program requires individuals to be able and available for work and to actively seek work. However, states have significant flexibility in implementing these requirements, as well as in determining the type of work that may be suitable given the individual’s circumstances. What this means is an individual may be quarantined or otherwise affected by COVID-19 but still eligible for UC, depending on state law. For more information: https://wdr.doleta.gov/directives/attach/UIPL/UIPL_10-20_Acc.pdf
Q: One of my employees just returned from a trip to a place where many people have been infected by COVID-19. Can I require the employee to be tested?
A. Ordinarily you can’t intrude into an employee’s health issues. However, if you can show that the test you’re requesting is job-related and you have reason to believe the employee could pose a direct threat to coworkers, you’re probably within your rights to make that request. Consult with an employment attorney.
For more information about COVID-19 in the workplace, OSHA has issued this publication: https://www.osha.gov/Publications/OSHA3990.pdf