April 24, 2020
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
As 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 enforcement guidance 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 previous alert.
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 enforcement guidance 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 told 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.] Employers should 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 firstname.lastname@example.org.
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.