Employee Safety and COVID-19

The mantra for an employer should be “safety and communication.”

SAFETY AND COMMUNICATION

All employers are subject to the Occupational Safety and Health Act, which established the Occupational Safety and Health Administration (OSHA). OSHA sets forth the standards for worker safety and health protection. With respect to COVID-19, OSHA has issued guidance for employers to ensure that their workplace is safe. Employers with employees should review the guidelines, which can be found here: https://www.osha.gov/Publications/OSHA3990.pdf. The Center for Disease Control and Prevention has also established guidelines to minimize workplace exposure from COVID-19, accessible here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

Tips for Employers based on the CDC’s and OSHA’s guidelines:

Inform employees of the recommendations implemented by the CDC. If you have employees who remain in the workplace, communicate to employees how to keep the workplace safe for everyone. The CDC’s recommendations are as follows:

• Wash your hands with soap and warm water for at least 20 seconds. If soap and water are not available, use hand sanitizer.
• Clean and disinfect your workspace.
• Avoid others’ workspaces if possible.
• Distance yourself from others in the workplace.
• Keep yourself informed of local, state, and national updates.
• If an employee present in the office is showing signs of illness consistent with COVID-19, send the employee home until the employee is no longer exhibiting symptoms or until the employee presents a doctor’s note advising that it is safe for the employee to return to work. Employees should be advised to stay home if they are showing signs of illness. Keep in mind that it may be difficult for employees to obtain doctor’s notes from their doctors at this time.
• If practical, allow for work-from-home options for employees.
• Different industries will require different standards of safety measures. For example, health care workers will require stricter standards than those industries that have little contact with the public. Consider your workplace’s risk level for transmission of the virus when developing the policies and procedures to put into effect.

LIABILITY OF EMPLOYER

Employers who are prudent and proactive in implementing procedures and a response plan during this crisis reduce risk for potential liability to their employees or to those their businesses serve. However, failure to take reasonable action to reduce exposure to employees and their families or to advise them of the risks present in the workplace could expose the employer to liability if an employee or relative of an employee contracts COVID-19 as a result of the Employer’s failure. In the event of a death of an employee, the worker’s compensation bar shall not prevent a surviving family member from suing their departed loved one’s employer for gross negligence. There may be evidentiary causation issues which could be difficult to prove, but nevertheless, the conduct is actionable and employers should be aware of this possibility.

COVID-19 AND PRIVACY OF EMPLOYEES

The Health Insurance Portability and Accountability Act (HIPAA) prohibits certain entities from sharing confidential health information. As a general rule, employers should treat any health information it obtains from its employees as confidential even if the employer is not subject to the HIPAA privacy requirements. However, should an employer learn that one of its employees has contracted COVID-19, or that its employee is exhibiting symptoms consistent with COVID-19, the employer should take action consistent with those discussed above. The employer has a duty to notify other employees if they may have been exposed to the virus, or if they have been exposed to someone who has self-reported symptoms. Reasonable steps should be taken to protect the identity of the person with symptoms or who may test positively.

For assistance in developing workplace plans, policies and procedures for preparedness and response to COVID-19, or to discuss your rights or obligations with regard to the same, please contact: