Since the COVID-19 crisis began, employees have submitted unsafe workplace
complaints to the U.S. Occupational Safety and Health Administration (OSHA)
in record numbers. Some of these employees have staged strikes to ensure
safer workplaces, while others have turned to the courts to hold employers
liable for employees’ exposure to the coronavirus that causes COVID-19.
These types of employee complaints are likely to increase as states lift
their “stay-at-home” orders over the next few weeks and employers ask their
employees to return to work. Below are some measures employers can take to
lessen the potential for employee complaints and OSHA inspections as
employees return to work.
Establish a Return-to-Work Plan
previously reported, OSHA has asked employers to develop COVID-19 response plans, and will
expect employers to have them in place before employees return to the
workplace. Similarly, OSHA has stated in
that it expects employers to follow the Centers for Disease Control and
Prevention’s hygiene and social-distancing guidelines, and that the agency
may fine employers if they fail to do so. Plaintiffs’ lawyers also will
likely argue that employers failed to follow the “standard of care”
required for their employees in failing to follow these guidelines, leading
to negligence claims that seek to bypass state law workers’ compensation
exclusive remedy provisions, as discussed in a
Every employer should, therefore, develop a return-to-work plan before
reopening its doors to its employees. These plans should consider (1) how
to encourage social distancing between employees and other ways to protect
employees when social distancing is not feasible, (2) whether to issue
masks or other PPE to employees, (3) whether to check employees’
temperatures before they enter the workplace, (4) what sanitization and
disinfection protocols are necessary, (5) whether a phased reopening or
staggered shift schedule is possible, (6) which employees will be excused
from work for COVID-19-related reasons, and (7) how to respond when the
employer learns of a confirmed COVID-19 case within its workforce.
There is no one-size-fits-all when it comes to return-to-work plans, and
employers must ensure their plans comply with any state or local orders and
take into account the specific nature of each workplace.
Prepare to Respond to OSHA Inquiries
Typically, when OSHA receives a safety complaint about an employer’s
workplace, the agency conducts an on-site inspection. But OSHA has been
overwhelmed with complaints since the COVID-19 crisis began. The agency
cannot respond to each of these complaints with an on-site inspection.
Instead, OSHA stated in recent
that it will focus its on-site inspections on high-risk workplaces like
nursing homes and biomedical laboratories. For lower-risk workplaces, OSHA
said it will conduct inspections remotely, and will ask employers to
“investigate the alleged conditions and make any necessary corrections or
modifications” to hazards identified during the inspections. Employers must
respond promptly and thoroughly to these inquiries, because OSHA said it
will respond to “inadequate” responses by conducting on-site inspections.
These on-site inspections are far more likely to lead to citations.
Consider Whether COVID-19
Cases Are Work-Related Before Recording Them
OSHA requires most employers to record when an employee is injured or
becomes ill at work. Employers typically do not have to record common
illness, like the cold or flu, but OSHA has advised that COVID-19 does not
fit into this exception. However, OSHA has also
employers that (with a few exceptions), employers do not need to record
COVID-19 cases in their injury and illness logs unless they have “objective
evidence” that the employee contracted the virus at work.
[The OSHA guidance referenced in this section was rescinded by OSHA on May
20 and replaced with new guidance, which places a greater burden on
employers to record COVID-19 cases within their workforce.]
follow this advice, because inclusion of COVID-19 cases in an injury and
illness log could be treated as an admission of work-relatedness in future
workers’ compensation and negligence claims filed by employees who argue
that they contracted the virus at work.
For assistance in protecting your company from OSHA liability and employee
claims while reopening your workplace, please contact the authors, other
members of the McGuireWoods
labor and employment team, or your McGuireWoods contact.
McGuireWoods has established a
COVID-19 Response Team to help clients navigate urgent and evolving legal and business issues
arising from the novel coronavirus pandemic. Lawyers in the firm’s 21
offices are ready to assist quickly on questions involving healthcare,
labor and employment, education, real estate and more. For assistance,
contact a team member or email
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.