Hey Compliance Warriors!
With many states starting to re-open right now we’re faced with an encroaching second wave of Covid-19 infections if proper and measurable precautions aren’t put in place. For employers, this is hugely difficult but important. Currently, there are numerous cases of employees attempting litigation for allegedly contracting Covid-19 in the workplace. Read on…
Article Via: usatoday.com
A handful of states are reopening for business following coronavirus-triggered lockdowns, raising two compelling questions: Must employers ensure the workplace is safe? And will they be held liable if employees contract the virus?
The short answer is that while health care providers must follow federal safety guidelines to guard against contagion, other businesses are not obligated to do so, leaving it to states and localities to set standards, experts say. And sick employees who seek damages, typically through worker’s compensation, must prove that they contracted the virus at work – an especially thorny challenge.
“It’s often an uphill battle,” for workers, says Jonathan Segal, an employment lawyer who represents companies at Duane Morris law firm in Philadelphia.
States such as Georgia, South Carolina, Tennessee and Alaska have at least partly lifted shutdown orders in recent days. In Georgia, gyms, bowling alleys, barbers and massage therapists were allowed to open Friday and restaurants could open Monday.
The Occupational Safety and Health Administration requires employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. To meet that standard, OSHA is advising businesses to follow the Centers for Disease Control and Prevention guidelines, including instructing employees to keep six feet away from co-workers or customers, taking temperatures, disinfecting surfaces, and providing face masks, hand sanitizers and barriers when appropriate.
“We’re seeing employers do that to mitigate that risk,” says Christina Meddin, a labor lawyer at Seyfarth Shaw in Atlanta who is advising business clients to follow the guidelines.
The more safeguards a company adopts, “the better your argument is going to be” if there’s a challenge by OSHA or a lawsuit, says Jennifer Scharf, a health law attorney at the Coppola Firm in Amherst, New York.
Here’s the rub: OSHA is enforcing the CDC guidelines and conducting inspections in response to deaths in hospitals but not in other cases, according to an OSHA memo released April 13 and Debbie Berkowitz, Worker Safety and Health program director for the National Employment Law Project, a worker advocacy group. About 4,000 coronavirus-related complaints have been filed against employers that fail to provide safe workplaces but the agency has not issued any citations or fines, Berkowitz says. Instead, she says, OSHA is pointing businesses to the voluntary guidelines.
“OSHA is not enforcing anything,” says Berkowitz, former OSHA senior policy adviser during the Obama administration. “OSHA does not have the backs of workers…It’s a travesty.”
In response to the criticism, the Labor Department, which includes OSHA, said in a statement: “OSHA will consult CDC guidelines and its own guidance” as it determines whether a workplace is “free from recognized hazards.”
“Where OSHA finds a violation, a citation will be issued and a civil monetary penalty imposed.”
Some states take the lead
Some states are creating their own safeguards. Besides mandating social distancing and other standards, Georgia Governor Brian Kemp’s executive order requires restaurant employees to wear face coverings. But most other businesses must provide personal protective equipment – such as face coverings – only “as available and appropriate to the function and location of the worker within the business.”
Berkowitz says that’s not enough, noting “there is significant risk of transmission of COVID-19 from infected individuals who are asymptomatic and presymptomatic.”
Many Georgia businesses, worried about the safety of employees and customers, as well as any legal liability, are choosing to remain largely shuttered. Suzanne Vizethann, the chef and owner of Buttermilk Kitchen in Chastain, is providing curbside pickup, e-commerce and catering services but doesn’t plan to reopen her 85-seat dining room for at least a couple of months.
“We don’t feel comfortable that this thing is behind us,” she says. “We’re not going to do anything that puts (employees) in harm’s way. That could be a big liability if somebody gets sick and their family gets sick.” She adds that it’s much easier to monitor social distancing between employees with the restaurant’s current limited services.
Other businesses in Georgia are reopening but taking pains to follow all the state’s guidelines – and more. Lester Crowell, owner of Three-13 Salon, Spa & Boutique in Marietta, reopened Friday and is requiring all hairstylists and technicians to wear face coverings and gloves. And even though styling stations are already six feet apart, the boutique for good measure is leaving every other chair empty in the 39-chair hairstyling section and 24-chair coloring area. Stylists are barred from gathering in the break room and are using disposable gowns for customers, among other safety measures.