Darlene M. Clabault, Contributor
Welcome to 2021, where we find ourselves about a year into the pandemic. We’ve learned a lot, but the learning is not over. As scientists continue to learn more about the virus, we need to assimilate that learning to help continue keeping employees and our organizations safe.
While the Occupational Safety and Health Administration (OSHA) provided some guidance over the past year, it did not come up with a COVID-19 standard. The agency focused mostly on respiratory protection and the general duty clause.
Steps To Take
Even without a safety standard, three simple concepts can go a long way in keeping your employees who report to a facility safe and keeping your company out of the courts: Having employees follow general public health strategies, such as the three W’s: Wear a mask, watch your distance (including avoiding congregate settings) and wash your hands.
Other steps include keeping infected employees out of the workplace. This could involve employee screening, such as health questionnaires and/or taking employee temperatures. While this can help, some infected individuals will have no symptoms, so no workplace is completely risk free. Employees should stay home if they are sick. The more employees you have working from home, of course, the safer the workplace.
While at the workplace, measures to keep employees away from each other as much as possible can also help. If a six-foot distance is not feasible, investigate other barriers. Eliminate congregate settings, including break and lunchrooms. Establish one-way travel in hallways.
Keeping the workplace clean can also help, such as by sanitizing and providing resources for good hand hygiene. Don’t forget to optimize building ventilation and increase your HVAC system’s outdoor air intake and consider installing HEPA filters. Remove or redirect personal fans to prevent blowing air from one worker to another.
What about Testing?
Requiring employees to provide a negative test result before arriving to work can pose some challenges. Once a person tests positive, he or she may continue to test positive for up to 12 weeks, even though he or she will not be contagious for that long. An employee may be negative one day but be infected the next.
This is why the CDC moved from a testing-based method to determine when people can be around others, to a symptom-based method. If an employee thought or knew he had COVID-19, and had symptoms, he can be around others after:
- Ten days since symptoms first appeared, and
- Twenty-four hours with no fever without the use of fever-reducing medications, and
- Other symptoms of COVID-19 are improving.
If an employee tested positive for COVID-19 but had no symptoms, and continues to have no symptoms, he can be with others after 10 days have passed since he had a positive viral test for COVID-19. Most entities do not require testing to decide when they can be around others; however, if a person’s healthcare provider recommends testing, the healthcare provider will let the individual know when he or she can return to work or otherwise be around others based on the test results.
Anyone who has had close contact with someone with COVID-19 should stay home for a full 14 days after their last exposure to that person, even if he or she tests negative.
You may be wondering if you may mandate that employees receive a COVID-19 vaccine when available. The general answer is yes, but you may need to consider accommodations for those who are medically advised to not get it or have religious reasons against it. Collective bargaining agreements, as well as your workplace culture, work and environment also need to be considered and weighed against the risks.
Employers who do not take steps to keep the workplace safe could face some claims. Employees have been filing various claims, including those involving unsafe workplaces. The employees are generally relying on guidance from the Centers for Disease Control and Prevent (CDC) and OSHA, including those public health strategies.
If, for example, Wilma Worker has an underlying medical condition and is afraid to come into work because she feels you have not taken the appropriate steps to keep employees safe, she could have a claim, not only under the OSH Act, but perhaps even under the Americans with Disabilities Act (ADA) if you did not allow her to work from home as an accommodation. Wilma might argue that she is being discriminated against because she is not allowed to work from home despite her underlying condition, and since the workplace does not require masking, increasing her personal health risks.
The majority of COVID-19-related claims involve a disability and/or employee leave. Others deal with retaliation or whistleblower protections, workplace safety and wage and hour issues.
Claims under the Families First Coronavirus Response Act (FFCRA) also continue to roll in. This law entitles employees of private employers with fewer than 500 employees (and all public employers) to paid leave for certain COVID-19-related reasons, such as quarantines, testing and caring for others.
In areas of the country that continue to have high community spread, employees will have a harder time arguing that they contracted the virus at work, lessening the risks of a workers’ compensation claim.
Getting the right messages across to employees can often take multiple attempts and methods. Put information in various places― from the company intranet to the back of bathroom stall doors. Depict, for example, how masks must be worn to be effective. List the symptoms of COVID-19. Include who to call with any questions (best to have a single COVID-19 contact person).
Don’t be afraid to overcommunicate and include not only the potential repercussions for not following the guidelines/rules, but also the reasons for following them. The final goal is for people to return to work safely, as well as to gatherings with family and friends. Reminding employees why your rules exist can help them understand. WMHS
Darlene M. Clabault; SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. has been writing about and helping employers comply with employment laws for over 20 years. Her focus is on laws such as the Family and Medical Leave Act and the Americans with Disabilities Act.