Last week, I spoke with friend and attorney Carrie Cherveny about whether organizations can mandate that their employees return to the workplace during the COVID-19 pandemic. It’s a really interesting read and it may answer a lot of questions for both employers and employees. I hope you’ll check it out.
During our conversation, we started talking about workplace safety and workers’ compensation as it relates to COVID-19. So, I wanted to dedicate an article exclusively to the subject.
Before we start talking about COVID-19 and workplace safety, let me introduce Carrie Cherveny. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies that ensure compliance and further overall organization goals, including risk mitigation when it comes to various insurances such as health and welfare programs and employment practices liability.
If Carrie’s name sounds familiar, it’s because she has helped us before with COVID-19 information. I love her insights on this article about business travel during the pandemic. As always, please don’t forget that since Carrie is a lawyer, her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
Carrie, in part one of our interview, we talked about what employers can and cannot do when it comes to mandating an employee’s return to work. That being said, should employers require that employees come back to the office? It’s a slight distinction but I believe an important one. And are there a couple of things that companies should consider when making that decision?
[Cherveny] The Centers for Disease Control (CDC), the Equal Employment Opportunity Commission(EEOC), and the Occupational Safety and Health Administration (OSHA) all encourage employers to be flexible and to allow employees to continue to telework where possible. If an employer decides to require employees to return to work, it must address workplace safety and return to work policies/programs.
In addition to safety protocols, employers should create a process through which an employee can raise concerns and/or ask for changes to work schedules, duties, and/or locations. As a threshold matter, employers cannot single out employees and ask them about any underlying health conditions or if they are in the CDC high-risk categories. However, they may open the door for employees to self-identify their concerns or special circumstance. If the employee requests a change in their working arrangements due to an underlying medical condition outlined by the CDC, the employer is responsible for following the interactive process under ADA to determine if a reasonable accommodation can be made.
The EEOC instructs that there may be lost-cost solutions available to employers that will provide an accommodation for the employee. For example, there may be ‘materials already on hand or easily obtained [that] may be effective.’ Employers may make changes to the work environment including one-way hallways, social distancing in common areas, reduced seating capacity in conference and break rooms, and installing barriers between employees and customers. Employers may also consider temporary job restructuring, temporary transfers to a different position, and modifying work schedules.
However, employers should proceed with some caution. The EEOC has made clear that an employer may not exclude an employee from the workplace solely because they are someone that the CDC has identified as a higher-risk for serious illness with COVID-19. For example, employers may not require all employees over age 65 or immune compromised to work from home. An employer may only do so if the employee’s condition poses a ‘direct threat’ to the employee’s health and that direct threat cannot be eliminated by a reasonable accommodation.
As an aside, it’s important to note that the ‘direct threat’ is a very high standard and requires a case-by-case assessment. Employers must rely on reasonable medical judgment about the specific employee’s disability (not a generalized assessment) using the most current medical knowledge and/or the best objective evidence. However, even if the employee’s condition does pose a direct threat to the employee’s health, the employer still may not exclude the employee from the workplace unless there is no available reasonable accommodation that will not pose an undue hardship on the business.
Over these past two articles, we’ve been talking about employees returning to the workplace. It raises the question: Are companies required to create COVID-19 compliant workplaces? What are a couple of things that organizations will have to consider doing to bring employees back to the workplace?
[Cherveny] The OSHA General Duty Clause states that each employer:
- Shall furnish to each employee, 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;
- Shall comply with occupational safety and health standards promulgated under this Act.
Each employer must comply with occupational safety and health standards pursuant to the General Duty Clause which are applicable to the employee’s own actions and conduct.
In addition to the OSHA obligations, employers may also face liability from employees seeking compensation. In most situations, employers believe an employee who experiences an injury or illness in the workplace may be covered by workers’ compensation insurance. However, workers’ compensation generally does not respond to a pandemic unless there is demonstrable proof that the condition was solely contracted within the course and scope of the job duties. For example, most workers’ compensation carriers have agreed that first responders and healthcare professionals would likely receive coverage for a COVID-19 claim, but this will vary from state to state. As a side note: Those states that are part of the NCCI (National Council on Compensation Insurance) should refer to the latest information at on the NCCI website. Other states or provinces should refer to their jurisdiction’s Department of Labor (DOL) website for guidance.
In your experience, what are you seeing when it comes to COVID-19 cases and workers’ compensation?
[Cherveny] Most workers’ compensation state statutes include a provision called the ‘exclusive remedy’ provision. The exclusive remedy provision provides that an employee’s only course of action and remediation is through the workers’ compensation claims process unless the employee experiences retaliation by the employer.
Because workers’ compensation carriers may not cover COVID-19 cases, the exclusive remedy provision does not apply and employee-litigants (and their attorneys) are free to pursue other legal causes of action (absent any state statutes to the contrary). Consequently, both public nuisance and negligence claims have been gaining traction in the courts.
Recently, cases have been filed against employers arguing that the employer did not act reasonably to provide a safe working environment to their employees. In particular, there have been a number of class actions lawsuits filed against employers under two causes of action: (1) negligence; and (2) public nuisance. Under both causes of action, plaintiffs argue that the employer did not engage in the appropriate protocols to ensure the employee’s health and safety in a COVID-19 working environment and as a result the employee suffered harm and/or damages. Many of the claims rely on similar allegations – some examples of those allegations include the employer’s failure to:
Employers may find these allegations instructive and should consider them as they build and implement their workplace COVID-19 safety programs. It’s important that employers understand their obligations and their rights to mitigate and manage the risk of working in the new COVID-19 environment.
What types of policies and procedures should employers consider to make their workplaces more safe for employees?
[Cherveny] Employers should consider creating new policies and standards of conduct (and updating existing policies) for employees in the workplace related to COVID-19. For guidance on building your own COVID Safety Program, see the HUB COVID Safety Policy – Self Inventory for recommendations. More specifically, new policies (and/or updated language) may include:
COVID-19 Safety Requirements – Federal
- Standards of conduct – Including handwashing, hand sanitizing, sharing of equipment, dissemination of hard-copy documents, donning and doffing of personal protective equipment (PPE), social distancing, and workstation cleaning and disinfecting.
- Face-masks, face-coverings, employee accommodations, and face shields – Specifically, the DOL, in its recently issued FAQ (June 11, 2020) has delineated between ‘face-coverings’ which are cloth and often home-made and ‘face-masks’ which are the ‘surgical’ masks (some however do not meet the surgical standards). While face-coverings are not considered PPE, the DOL reminds employers of their General Duty Clause obligations to provide a safe working environment.
Employers may require employees to wear face masks or cloth face coverings as a reasonable means of controlling community spread as part of a larger COVID-19 health and safety plan. Employers have the discretion to determine whether to allow (and/or require) employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site.
COVID-19 Safety Requirements – State and Local
Beyond the recommendations provided by the DOL, some states and local jurisdictions are requiring face coverings at businesses, as part of their COVID-19 mitigation strategies. In areas where face coverings are mandated by state or local authorities, employers should adhere to these requirements as specified.
- Performance, Accountability, and Compliance – Details and consequences regarding prohibited conduct and failure to comply with the standards of conduct such as coming to work with COVID-19 symptoms, failure to socially distance in the workplace, failure to wear and utilize PPE, and failure to disinfect/clean working areas and equipment.
- Workplace “Traffic” Rules – Regarding entering and exiting the building to ensure social distancing. For example, only two people in an elevator at one time and/or the requirement to wash one’s hands before entering the office or workspace.
- Attendance and Calling-in Rules – New procedures and policies regarding calling in sick, incentives to remain home when sick rather than come into the office (even if the employee feels they can work), and what circumstances or symptoms require (or mandate) employees to remain home.
- Visitors and Children in the Workplace – Should an employer allow children and/or visitors in the workplace, especially if they will face a significant challenge adhering to social distancing requirements.
In fact, in the early stages of re-opening, employers will likely bring back a small percentage of the total employee population to facilitate social distancing and limit risk and exposure. Adding children or other visitors to the number of people in the workplace would be counterproductive and hinder the employer’s efforts to mitigate the risk of COVID-19 in the workplace.
- Employee Acknowledgements – Employers should disseminate new policies to employees and require the employees to sign an acknowledgement that includes the obligation to read and comply with the policies. In addition, employers should explain the consequences for failure to comply. Finally, the acknowledgement should remind employees that they are employed ‘at will’ and that compliance does not provide a guarantee of continued employment.
- Employee Communications – In an effort to limit risk and exposure, employers should consider leveraging their technology to deliver employee communications including new policies. Most HR, payroll and/or learning management systems have functionality to enable electronic distribution and acknowledgement tracking. Consider leveraging these systems to complete this process, which in turn align with new safety protocols.
I simply cannot thank Carrie enough for sharing her knowledge with us. If you’re looking to stay up-to-date with pandemic information, be sure to check out HUB International’s COVID-19 FAQ. This is a 200+ question FAQ updated each week to consolidate the ever-changing and updated regulatory information across all aspects of employment including benefits, health and safety, and employee relations.
It’s hard to believe we’ve been dealing with COVID-19 for almost a year. And there are still so many things we don’t know and circumstances we’re being faced with for the first time. Like workers’ compensation and workplace safety during a pandemic. Thankfully, there are knowledgeable contributors like Carrie and resources available to help us navigate.8