Managing workplace safety
The health and well-being of your workforce are primary concerns of employers and employees alike, which is why the coronavirus outbreak has created particular stress in companies around the country. Fears about spreading the virus are paired with worry about losing productivity and a paycheck, leading to greater risk as employers feel the need to keep their doors open and employees feel obligated to come in, regardless of how they feel. Fortunately, there’s guidance on what employers can and cannot do in these unique circumstances, and what employees should do if they’re feeling ill and worried about having to choose between infecting others and losing their job.
Under Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) guidelines, known as the “general duty clause”, employers are required to give employees “a place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” What that means, in practical terms, is that an employer cannot force employees to work in an environment that presents an imminent danger to their health or well-being. While it’s unclear as to whether that provision would allow an employee to refuse to come into work due to coronavirus fears, employers can and should take precautions to create as safe a working environment as possible.
Frequently asked workplace safety questions amid coronavirus crisis:
- Workplace risk
- American Disabilities Act
Workplace risk
How do I limit the number of employees that come to work?
One of the most basic steps employers can take in trying to stop the spread of the coronavirus is to limit the number of people nearby within your workplace at any one time. Where possible, the CDC is recommending businesses move to remote work to avoid the contact that might cause further spread of the disease.
For some businesses, remote work isn’t an option, given the nature of the work or product. In those workplaces, employers should look to stagger shifts and start times as much as possible and keep people as far apart as realistically possible, in addition to posting and adhering to all OSHA and CDC guidelines for workplace cleanliness and hygiene.
Will I face liability for spreading coronavirus?
Given that the coronavirus is unlike anything experienced in recent history, it’s hard to make definitive judgments by the standards or rules that likely do not account for something of this magnitude. OSHA standards mandate that employers maintain a safe work environment for employees, and those that fail to meet safety standards on the books would certainly be liable for any injury or illness that occurred because of their negligence. But the virality and contagiousness of coronavirus are such that employers can follow every applicable best practice and still end up with coronavirus cases in the office due to an asymptomatic employee who spread it unknowingly.
Employers can limit their exposure to potential liability by following all the CDC guidelines for workplace cleaning and disinfection and educating employees on how to avoid spreading the disease, plus instituting practices to prevent unnecessary contact between large groups of employees, from remote work to staggered shifts. Sick employees should be encouraged to stay home, and any employees displaying symptoms can be told to go home.
What happens if someone in my office contracts coronavirus?
If you learn that one of your employees has tested positive for COVID-19, you should identify and notify any employees that came into contact with the infected individual to ensure that they are sent home to self-quarantine for 14 days. You should also find a way to notify any guests or vendors that may have been in your offices that they may have been exposed to someone carrying the disease (without identifying the individual in question), as well as any businesses that you might share your building with.
If the employee who contracted the coronavirus did so in the course of their work for you, they may be eligible for workers’ compensation, depending on the nature of the work. Someone who contracted the disease during a business trip could make a legitimate claim that their contraction of the coronavirus came from conditions unique to their work, particularly if traveling to areas with widespread outbreaks. However, claims arising from day-to-day work in the office would be unlikely to qualify, as it would be impossible to differentiate between the risks posed at work and the risks we all face in our daily lives.
Can I mandate screenings?
Under the rules of the ADA and the Equal Employment Opportunities Commission (EEOC) employers cannot require employees to be tested as a precondition of coming to work, because those rules prevent discrimination based upon a medical condition. While taking a temperature of an employee is generally a medical exam, because of the COVID-19 pandemic, employers may be able to measure employees’ temperature. This and other medical information would still be subject to ADA confidentiality requirements. You should seek advice from an attorney to discuss this and other complex issues. You should encourage employees to be cognizant of how they feel and to stay home if they think they might be sick and make available sick leave to those worried about losing pay due to an absence. You can also require a doctor’s note and clearance from any employees suspected of having coronavirus before allowing them to return to work.
American Disabilities Act
Does coronavirus count as a disability under the ADA?
The Americans with Disabilities Act (ADA) requires employers to accommodate employees with disabilities in their ability to work from home. While the coronavirus may prevent those employees who have contracted it from coming into the office or doing work, there is as of yet no guidance that having the disease would qualify as a disability, either in terms of a requirement to be allowed to work from home or for disability benefits. Under the Families First Coronavirus Response Act, those who have contracted coronavirus are entitled to take paid sick leave while they recover from the disease.
Trying to ensure a safe workspace for your employees might feel like an impossible task, but as an employer, you have an obligation to do everything in your power to follow available guidelines and prevent the spread of the disease, at least within your company. Speak with an attorney to understand what duty you have to your employees; LegalShield can help with a small business plan.
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