What Employers Need to Know in Times Like These...
In light of the spreading Coronavirus (COVID-19), it is important that employers stay up to date with respect to their duty to their employees. The Occupational Health and Safety Act (“OSHA”) requires that employers maintain a place of employment that is free from recognized hazards. This duty is codified in Section 654(a) of the Act and known as the General Duty Clause. OSHA applies to all private employers. Case law and OSHA explains that in order to demonstrate a violation of the General Duty Clause, a plaintiff must prove: (1) A condition or activity in the employer’s workplace presented a hazard to employees; (2) the cited employer or the employer’s industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) feasible means existed to eliminate or materially reduce the hazard.
OSHA violations carry penalties, along with potential civil and criminal consequences. It is best practice for employers to take steps to eliminate or materially reduce the impact of COVID-19 in the workplace.
The Center for Disease Control (“CDC”) and OSHA have issued guidance on this topic. It is imperative that businesses stay current with the CDC and OSHA directives along with the state and local government instructions. As of the date of this article’s publication (March 8, 2020), the CDC recommends among other things, that employers:
Actively encourage sick employees to stay home. Encourage employees who have symptoms of acute respiratory illness to stay home. Provide material regarding the symptoms of COVID-19 as provided by the CDC. Companies should not require a note from a healthcare provider to validate or invalidate an employees acute respiratory illness. During times like these, healthcare providers might be too busy to provide timely documentation for the employers.
Promote respiratory etiquette and hand hygiene. Require employees to wash their hands thoroughly with hot water and soap and avoid touching their face. Put up posters that promote and encourage hygiene etiquette.
Perform routine environmental cleaning. Keep disposable disinfecting wipes readily available for door knobs and surfaces. Also have hand sanitizers available. Additionally, maintain regular and routine office cleaning.
Restrict Employee Travel. The CDC actively maintains an up-to-date Travel Risk Assessment that identifies a country/region’s risk of transmission. Businesses may restrict employees from traveling to countries that are designated Level 2 or Level 3 Health Notice. As of March 8, 2020, these countries are: Japan, South Korea, Italy, China, and Iran.
Require employees who have traveled to a country with a Level 3 Travel Health Notice to stay home for a period of 14 days. The CDC has explicit instructions that are updated in real time regarding the procedure individuals must take in the event they traveled to a country with a Level 3 Health Notice. It is good practice to circulate these materials to all employees, especially those required to travel. Even more, companies should postpone any trips to the countries with an elevated risk. As of March 8, 2020, those countries are: China, Iran, Italy, South Korea, Japan
Require employees who reside with an individual with Coronavirus report such information to the company. Circulate information relating to conducting a self risk assessment.
Communicate with other entities with whom your company does business (ie- vendors, contractors, clients) regarding their policies relating to COVID-19.
When an employee has a confirmed case of COVID-19. Inform the other employees at the company of the possible exposure to the virus. Consult counsel with any questions regarding confidentiality and compliance with applicable state and federal laws.
Circulate updates to Employees regarding the latest guidelines issued by the CDC and other public health agencies, both state and federal.
It is a good idea for employers to circulate communications discussing the virus and the precautions and protocol that the company is taking to provide a safe and hazard-free workplace. Contact counsel to ensure the communication is thorough, up-to-date and compliant. When communicating and implementing precautions and remedies, it is important to keep in mind other laws that could be implicated when dealing with COVID-19 (ie- Title VII, Family Medical Leave Act, the Americans with Disabilities Act, and other applicable state laws). Companies should contact counsel with any concerns relating to compliance with the applicable federal and state laws.