Workplace Safety & Related Legal Issues During COVID-19
Keeping a workplace safe during the COVID-19 pandemic can be challenging. The disease is extremely contagious, yet many infected people are asymptomatic, and patterns of transmission are not always clear. The Occupational Safety and Health Administration of the federal government (OSHA) has provided detailed guidelines for workplace safety policies. While OSHA has not issued new requirements tailored to COVID-19, its guidance can help businesses and employees interpret current employee safety requirements as applied to the virus.
The guidelines separate businesses into four zones, according to severity of risk. The first two zones, known as very high exposure risk and high exposure risk, cover businesses in health care and certain related fields. The third zone, known as medium exposure risk, covers businesses in which employees have significant contact with the general population or other employees. The fourth zone, known as lower exposure risk, covers businesses in which employees have limited contact with the general population and other employees. In all zones, employers should develop an infectious disease preparedness and response plan. They also should implement basic hygiene and infection control practices, adopt flexible sick leave policies, and inform employees about what they can do to protect their safety in the workplace.
For each zone, OSHA recommends certain control measures for employers to follow. These include engineering controls, administrative controls, and potentially personal protective equipment (PPE). Engineering controls involve physical alterations to a workplace, such as changes to the ventilation system or the installation of air filters or physical barriers. Administrative controls involve changes to policies and procedures, such as reducing face-to-face interactions, avoiding business travel, altering shifts to reduce the number of employees in a single space, and requiring hand washing and other hygienic measures. Personal protective equipment includes devices such as face masks, face shields, goggles, and gloves.
An employer may not retaliate against an employee for raising workplace safety and health concerns related to COVID-19. Section 11(c) of the Occupational Safety and Health Act protects employees from retaliatory efforts (like being fired) when the employee raises workplace safety concerns or reports those concerns to OSHA.
State Safety Standards
Some states have issued executive orders, using OSHA guidance, to specify workplace safety standards for employees during the COVID-19 pandemic. For example, Michigan's Executive Order 2020-145 requires employers to develop a COVID-19 preparedness and response plan consistent with OSHA's standards and follow protocols such as keeping everyone at least six feet apart to the greatest extent possible and providing face coverings for all employees.
New Jersey's Executive Order No. 192, along with social distancing guidelines and masking requirements, requires employers to provide employees with adequate break times for repeated handwashing and allows employers to require their employees to wear gloves at the worksite, so long as the gloves are provided by the employer.
States With Workplace Safety Standards (December 2020)
California, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Virginia, Washington.
Identifying and Responding to Workplace Infections
An employer should be aware that COVID-19 symptoms can overlap with symptoms of an ordinary flu or other less dangerous illnesses. If an employee arrives at work with a fever, a dry cough, or shortness of breath, though, an employer should tell them to seek medical attention. An employer can tell an employee who is exhibiting COVID-19 symptoms to go home without violating the Americans with Disabilities Act (ADA). Furthermore, an employer is legally allowed to take an employee's temperature or conduct other health checks during the COVID-19 outbreak. An employer also can require an employee to tell their supervisor if they test positive, if they have symptoms, or if they have had contact with a known COVID-19 patient.
In any of these three situations, an employer should isolate, clean, and disinfect all areas that the employee may have used for prolonged periods during the last seven days. The Centers for Disease Control and Prevention (CDC) provides guidelines for this process. A business probably will not need to shut down completely.
Generally, an employee who has been diagnosed with COVID-19 but does not require hospital care will need to stay at home for at least seven days after the first onset of symptoms. They should stay at home for at least three days after their fever subsides (without the assistance of medications) and their respiratory symptoms improve. Ideally, an employee also should test negative for COVID-19 before ending their isolation, although this may not be possible because of limited testing availability. An employer is entitled to require an employee to present a doctor's note certifying that they are fit for work before allowing them to return.
Contact Tracing Programs in the Workplace
Contact tracing is the process of identifying individuals with COVID-19, helping them isolate themselves, and identifying anyone with whom they may have come in contact to prevent further spread of the virus. Employers can benefit from implementing contact tracing programs in their businesses, which can protect their employees' safety and reduce business disruption.
According to the CDC, close contacts are people who have been within six feet of the infected person (a laboratory-confirmed or probable case of COVID-19) for at least 15 minutes. Of course, an employer can take a more stringent approach to identifying close contact individuals for the sake of preventing the spread of the virus. These might include anyone who worked on the same shift as the infected person, or anyone who signed into the workplace in the last day or two when the infected person also signed in, whether or not they came within six feet. Since an employer cannot announce which of its employees have confirmed or suspected cases of COVID-19, policies that avoid revealing which employee may be infected could be easier to carry out.
An employer is not required to report any positive tests among its employees to the CDC. However, contact tracing programs created by local or state health departments may reach out to employers for more information about the people with whom an infected person may have been in contact.