April 30, 2020

Keeping Employees Safe at Work: An Employer's Guide

Point by Point

This episode of Point By Point was produced prior to the combination of Waller and Holland & Knight.

As states begin to lift stay-at-home orders and businesses plan for reopening, OSHA is asking employers to develop response plans and procedures prior to employees returning to work. Waller partner Aron Karabel, Steve Hawkins, Deputy Commissioner of Labor for the State of Tennessee, and Mike Palmer, principal with EnSafe, offer practical tips for companies as they prepare their plans to help employees, customers and clients stay safe in the midst of the COVID-19 pandemic.

For additional resources, see here.

This is a summary of the conversation:

Morgan Ribeiro, Host

Governors, mayors and other leaders across the country are lifting stay at home orders and beginning the reopening process. There's a lot to consider during this process, and there's no way to fully predict the path forward for employers, regardless of their industry. Aron, what do you recommend for employers to review and to better understand before they begin to develop their reopening plans?


Employers should start reviewing federal, state and local guidelines and executive orders. We know at a national level that the government wants reopening efforts to be in phases, depending on the prevalence of COVID-19 in the particular jurisdiction. We also know that governors are responsible for making the final determination on when and how to begin reopening. Some will follow the federal government's phased approach. Some won't. It just depends on the jurisdiction you're in. Densely populated municipalities will likely have their own order, and employers need to consider those. It's unclear whether those orders will be aligned. An example of that is Texas. The state began protocols for a reopening last week, but Austin has tightened its protocols, implementing strict face-covering requirements. Employers should also consider sick leave policies in certain jurisdictions. They've adopted employee-friendly policies, such as in L.A. for individuals over 65 with pre-existing conditions. They may be entitled to additional leave for COVID-19-related reasons. Lastly, employers are going want to consider recent CDC guidance.


Mike, given your role and the work you do with employers and clients across the U.S., I’d like to ask your input in the new CDC guidelines.


Everyone is very anxious to get back to work. Employers are very anxious to, from a financial standpoint, to get business going again. Employers need to do two things right off the bat. First, you have to determine what phase you’re in, and depending on the guidelines, what kind of employer are you?

After that, you’ve got to determine if you have people with COVID-19 symptoms and have tested positive, or is you have employees with COVID-19 symptoms and haven’t tested, ones that are vulnerable or ones that are not symptomatic at all. So there’s actually different requirements based on which categories you employees fall under.

The next part is safety getting everyone returning to work. There are a lot of elements to that - temperature screenings, for instance, but also safe-start concerns that are COVID-19-related and non-COVID-19-related. You’ve got to get equipment and systems back up and running safely. There’s an increased cleaning schedule.

Lastly, you need a plan for what's going happen if somebody becomes sick. How are you going handle that? How are you going report it? How are you going to get care of them? How you going determine other identified individuals? Those are the kind of broad-based considerations and orders and you really need to have a plan before they ever start getting back to work.


Has OSHA implemented new standards specifically for COVID-19? And if not, what can employers do to minimize employee concerns and force avoid OSHA citations?


OSHA hasn't taken any specific steps to issue an emergency standard. They have adopted guidelines from other sources, and in the absence of other specific standards, OSHA always has the general duty clause that requires employers to protect their employees from hazards that are recognized and that are likely to cause serious physical harm or death.

I don't think there's any escaping that. That general duty clause could apply to employers who decided to take no action to protect their employees from this disease. Our advice would be to take action and to follow the CDC guidelines and to implement those. One thing I would like to encourage about employees today. You should not go into this thinking ”I am doing this to avoid OSHA coming in to issue a citation. That's not what you're doing. You should be taking these actions to protect your employees and to keep them from being contaminated or exposed to this illness.

Think about how you run your business and then think about how you could implement these guidelines and still get your job done.

I think it's really important for employers to stress to their employees how important it is to follow these guidelines when you're off the job so that you don't bring the virus back into the facility.


That's a really excellent point that I think maybe oftentimes gets overlooked. In light of COVID-19, I’ve heard a lot about “good faith” efforts. Can you address that? And has OSHA relaxed its standards?


OSHA did issue some guidelines that most of the state programs will likely follow. They say that if you've made good faith efforts to comply with annual standards like fit testing or annual hearing tests, that OSHA’s going to grant a three-month extension of those to allow employers to comply and give them a reprieve from those requirements.

The most important thing about that is, so what constitutes good faith? We’ll start on the extreme end. If you’re going to have to have a vendor in from another state, I think it’s good faith effort that we’re not going to do that.

With travel restrictions being what they are, that if that's what it takes to comply, then you're not going be able to do that. So you made the good faith effort.

And then on the opposite in that is, if you own all the equipment, it's sitting right there in your facility and you can do it and maintain the CDC guidelines as far separating yourself, then you probably should go ahead and do that.


OSHA really wants employers to be thoughtful about putting together policies and procedures that are effective and that safeguard workers and then implement safe work practices.


Some state and local governments have suggested that their reopening orders may require that businesses develop written policies, especially around social distancing, before being allowed to reopen. Mike, what should employers consider as they revamp their policies and procedures?


There is so much information out there right now. There's no reason to think that you’ve got to reinvent the wheel or create something that’s not already out there.

Look at how the available guidelines apply to you for your specific workplace and then write that into some form of a plan. This could be very condensed and easy and simple.


Even once public health and governmental officials determine it is safe for employees to return to work, employees may still be reluctant for a variety of reasons, or maybe want to come back to work, even though they shouldn't yet. Steve, any advice for employers who may be addressing employees in each of those scenarios?


It’s really important to develop a written plan. And while I know lots of employers probably think all OSHA says is “you need a written plan, you need a written plan.” Honestly, for something as serious as we're facing here, the thing a written plan does is it lets you organize your thoughts, look at the CDC guidelines and think about how you're going to apply them in all aspects of running your business.

I think it's super important to be honest with your employees and let them know that you've developed the plan, that you've taken the latest information from the CDC into consideration and that you have found a way to apply that to your operations.

And then I can't stress this enough. Employees know what's important because management sends them all kind of clues - and the clues are not in memos. They're not in what somebody says. They're in what people do, And so if you develop a plan, you figure this out and you implement it well. Employees are going to know that you've taken it seriously. If you do that, I think you'll see good results. If you slapped together something and you buy a couple of bottles of sanitizer and you spray a little bit here and a little bit there and employees don't see that you're taking it seriously, I think you’re going to have a different result. They are going to file complaints with OSHA, and frankly, they may just refuse to come to work.


I wanted to reiterate a couple of points that Steve just make with a couple of case examples. We’ve had a client contact us that all of a sudden had a couple of people that had tested positive for COVID-19. They didn’t have a written plan in place. They had talked about it, but they really didn't have a plan about what they're going do If they did have a positive case. They had to scramble to find a company to come in and clean and disinfect. They had a scramble to decide how they were going to communicate to the workforce, how they were going to get that word out, how they're going identify people who have been in contact with the individuals. They did a great job, but they were completely reactionary.

Had another client that had plan a month ago. We had worked with them in detail about specifically what they're going do for people coming in the plant. And if they did have a positive case, they were able to deal with it.


I wanted to share this from a perspective of someone going through fire prevention training. It's interesting that not a lot of people know what to do when there is an emergency unless they have been trained multiple times on who is responsible. Where do I need to go and what do I need to do? And what are the really simple things they can do to get out of the building that is on fire. It requires a level of training and a level of understanding in order to do it effectively.


Let’s say  that there is a positive COVID-19 case at your workplace. I'm wondering what instances are reportable and need to be entered into the log.


It really is going to vary from work location to work location. If you're a manufacturing firm, and you have a single case in your facility and you don't have any others, I wouldn’t think most people would think that was work-related. But if you’re a health care provider or a meatpacking plant, it might be hard to argue that's not work-related, so employers will have to make a determination of whether they believe that exposure to the virus actually came from the work environment or not.

I also want to stress that the log is not what makes your workplace safe, right? If you're going have angst and worry, worry about how good a job you're doing keeping the facility clean in between shifts and what you're doing to separate your employees and keep the face coverings and do temperature testing and those kind of things. There will be a lot of stuff that will shake out in the months after this about what recording should be on the log.

If I were a manufacturing firm, I wouldn't spend a lot of time worried about my log. I would spend all of my efforts trying to make sure that I was doing a good job (in protecting employees).


Employees’ fear for their health is a real thing. I mean, it really should be taken seriously. I read an article recently that said that Tennessee OSHA had received nearly 200 complaints in the last month from employees. How are those being handled? And how is that communicated back to employers? Are they made aware of these complaints that are coming through? And how did those get escalated?


What our office is doing with employee complaints is we're handling those by letter, and so we will receive a complaint from an employee, we send the employer a letter. We asked them to respond to us within five days, and then when we get that response, we review the response we share with the employees and then we make a determination of whether or not to make an on-site inspection.

I am always amazed at how honest employers are when we send that letter. Most of our letters have been very effective. Most of the time the employee is satisfied with the result.

The most important thing for us is that we have a limited number of inspectors, and that is absolutely the fastest and least likely way exposing our employees or your employees to our employees. That's the most effective way for us to handle those. The vast majority will be handled by letter to the employer.


Aron, our labor and employment attorneys have been fielding a lot of questions over the last few weeks. But there are a few frequent questions I think your team is getting right now. One is around patient privacy. If an employee tests positive for COVID-19, how does that get communicated with the rest of the workplace?


Employers are genuinely concerned and worried about their employees safety. That’s been reflected in the questions that we received. With that, they're worried about their legal exposure while trying to normalize their business operations.

Last week, the EEOC put out guidance last week on confidentiality of medical information with respect to employee testing. That have made it clear that you can take temperature testing, but the information that you gather from those tests - that's confidential.

Now, juxtapose that to a situation where you have an employee that is tested positive for COVID-19 or has symptoms, and you have to tell your employees who they were in contact. You're inevitably going to disclose the individual who had the symptoms or the diagnosis.

So balancing protecting employees’ confidentiality with employee safety is something that employers are going have to do.

It's going be a case-by case-basis.


From a bigger picture standpoint, what can employers do to bring people back to work? If you're working in a factory or if you're working in a health care setting, what are things that employers can do to ensure that this reopening process goes smoothly?


It is so easy to be myopically focused on COVID-19 that people miss all the other hazards out there. There's a couple really key things here. One is training and communication. Before coming back to work, we have to be very, very clear with them on all the considerations they should be looking at. We’re not used to a couple of different things here, right? We’re not used to sitting at home for a couple of months. So you’ve got to think about what challenges that could present.

I'm sure we've got those people that are #betterversion when they're off for two months and come back right and are smarter and stronger than they ever. We probably also have those people that haven’t moved off the couch and watch every Netflix movie there was. So we have got to take that in consideration when bringing people back in the workplace.

Meanwhile, I would get my maintenance team looking at restarting of equipment safely and looking at the requirements that the process safety standards specifically has for after restart after shut down that employers should follow.

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