Employers Re-Opening Workplaces Need to “Protect and Defend”

Posted by Attorney David McClurg in Labor Relations, COVID-19 / Comments

Exposure to the COVID 19 virus will continue for months and possibly years into the future, as will employers’ exposure to workers compensation, OSHA and other, more novel claims from employees, family members of employees and customers seeking compensation for the effects of the illness that they contend originated in the workplace. Going forward, employers must “protect” their employees and customers from exposure to the virus, and “defend” themselves against these potential claims.

Create a COVID Workplace Health and Safety Plan for Re-Opening or Continuing Your Business in the COVID Era.

The Centers for Disease Control and Prevention (“CDC”) Interim Guidance for Businesses and Employers contains guidelines and recommendations on creating a Health and Safety Plan for business operations in the COVID era, including:

•  Designate a COVID “Workplace Coordinator” and “Transition Team.” Companies should identify a workplace coordinator responsible for assessing COVID issues and their impact on the business. This person should be sufficiently empowered to implement, and enforce the Health and Safety Plan. Depending on the size of the organization, a transition team may also be needed to ensure that the company is safely resuming operations and protecting its employees and customers. The transition team could include individuals from HR, communications, operations, facilities and maintenance and upper management. Legal assistance may be required to help balance legal compliance and practical, business-driven realities.

•  Review and Reconfigure Worksites And Work Spaces As Needed. The CDC’s “Interim Guidance for Businesses and Employers Responding to COVID,” as well as its various industry specific guidelines, encourages businesses to implementation of “social distancing” with prevention actions such as:

•  Moving furniture and workstations to support social distancing

•  Installing barriers

•  Using markers to show where people should stand

•  Improving ventilation by increasing airflow, filtration, and use of outside air

•  Replacing high-touch communal items, such as coffee pots, water coolers, and bulk snacks, with alternatives such as single-serving items.

•  Establish A Robust Cleaning and Disinfecting Protocol. Businesses must enhance and increase the frequency of their routine environmental cleaning and disinfecting protocol, and should develop a schedule for regularly cleaning and disinfecting all frequently touched surfaces in the facilities, such as workstations, keyboards, telephones, handrails, and doorknobs, multiple times during the day. Sanitizing customer carts and baskets after each use is a good practice for retail establishments. In addition to an enhanced standard cleaning protocol, businesses should also have a special cleaning and disinfectant protocol to be implemented after persons suspected or confirmed to have COVID have been in the facility. In such instances, the CDC recommends the following for facilities that do not house people overnight:

• Close off all areas visited by the ill person;
• Increase air circulation in the area;
• Wait 24 hours before beginning other cleaning measures;
• Clean all surfaces with detergent or soap and water prior to disinfection; and
• Disinfect all surfaces with an EPA-approved product effective against the virus that causes COVID.

•  Review and Modifying Pre-COVID Employment Policies. A review of company policies and procedures should be conducted to ensure they do not increase the risk of COVID infections or potential claims. Companies should review their: leave policies in light of the Emergency Sick Leave provisions in the Families First Coronavirus Response Act (“FFCRA”); reimbursement and business expense policies, especially as it impacts employee expenses for teleworking; scheduling and work hours policies, especially as it impacts any staggered schedules, operating hours, or teleworking expectations; shared or communal space usage policies; and safety and security policies. It will be important for employees to understand all employer policies, and for employers to ensure that managers and supervisors are prepared to implement and enforce the policies fairly and consistently. Uneven or ill-considered application of these policies may well lead to discrimination claims.

•  Incorporate New Business Models. COVID resulted in major business changes for many companies. For example, companies may have relied more heavily on the website in marketing, sales and customer relations; they may have conducted more transactions electronically; or identified new supply chains and new ways of delivering products and services. Incorporating these business changes into the period of return-to-work can reduce the needs for employees, customers, and vendors to be in the workplace, increasing the ability to arrange for social distancing at the workplace.

•  Create Pathways for Communications from Employees, Customers, Vendors and Visitors, and Information Protection. Companies should ensure that their planning includes provisions for providing employees, vendors, and customers with pertinent ongoing communication. Businesses should prepare communication packages to facilitate a quick response to high-frequency scenarios, such as alerting employees to potential workplace exposure after a co-worker has tested positive for the virus, highlighting changing workplace or store hours in response to local conditions, and distributing guidance from trusted governmental or academic sources. Companies should also ensure that employees, customers, vendors, and visitors have clear communication lines for expressing concerns and notifying the company of threats and hazards relating to COVID. Further, when an employee or contractor tests positive, he or she needs to know how and to whom to communicate that information to ensure that it will reach only those with a need to know.

Administrative controls: Change the way people work.

Initial short-term responses to COVID are now being viewed as long-term changes to office practices:

• Those with symptoms or with sick family members should notify their supervisor and stay home. Enhanced cleaning and disinfection of their workspace should take place.
• Consider conducting daily symptom and temperature screening.
• Stagger shifts and break times. Consider having employees and visitors phone from their cars to enable them to enter at staggered times.
• Clean and disinfect high touch surfaces, like work stations, keyboards, telephones, handrails, copiers/printers and doorknobs. Provide cleaning and disinfection materials, including wipes.
• Change social habits by prohibiting handshakes, hugs, and fist bumps and limiting use and occupancy of elevators to maintain social distancing.
• Incentivize forms of transportation that minimize close contact, such as offering reimbursement for parking or single-occupancy rides.
• Enforce the uses of masks by all employees, visitors and guests in all areas of the business.
• Prohibit visitors and guests from entering the building if sick.

Educate employees and supervisors about steps they can take to protect themselves at work.

Training on a variety of infection prevention, response, and mitigation topics should be easily understood, in the preferred language of non-English-speaking workers. Post signs, available from the CDC, on hand hygiene, COVID symptoms, and respiratory etiquette,