By Katherine Schwartz
Demand Generation Specialist
There’s much uncertainty surrounding employer liability when it comes to an employee who tests positive for COVID-19 due to workplace exposure. Employers are stuck in a tug-o-war match between state governments, the CDC, OSHA, and the federal government. Are employers liable for coronavirus spread among employees? How can you avoid COVID-19 workplace violations? What mandates govern the workplace right now?
While there’s little clarity, legal professionals have begun to provide best practices for employers to follow. While they’re only generalizations, they provide precedent-backed advice to protect employers from liabilities. Here’s a look at the best practices to avoid liability and COVID-19 workplace violations.
Consider your duty as an employer
Protocols specific to coronavirus may still be up in the air, but there are plenty of workplace-specific standards from OSHA to abide by in these unprecedented times. Specifically, as it relates to the duty to provide a safe workplace. Several states have also released specific OSHA supplements for operating a safe workplace during the pandemic (ex. New York). The chief precedents employers need to focus on include:
- Provide proper personal protective equipment (PPE)
- Injury and illness record keeping and reporting
- General duty clause (workplace safety expectation)
It all boils down to an employer’s duty to provide a safe workplace, proper protective equipment, and the means for employees to feel safe while on the job. While there’s general uncertainty and trepidation surrounding this unprecedented pandemic, employer efforts should still emphasize these essential duties.
Contact tracing and exposure notification
Under current guidelines, employers need to act reasonably in the event of a confirmed case of coronavirus. As governing bodies strive to implement contact tracing methods to reduce the spread of coronavirus, employers play a role. Workplaces need a method to register a positive COVID-19 diagnosis and alert employees who may have had contact with this person—all in a way that protects privacy.
Excluding infected employees and recommending self-quarantine for possible exposure can mitigate employers of any liability associated with a confirmed case of COVID-19 in the workplace. In addition, report all confirmed cases that involve hospitalization within 24 hours.
Responsible testing and self-screening
According to CDC and OSHA guidelines, employers can mandate both COVID-19 tests and self-screening for employers. The Equal Employment Opportunity Commission (EEOC) provided new guidance related to coronavirus in April, which says employers can employ tests and self-screening methods that are “accurate and reliable, administered in a manner consistent with business necessity.”
Be aware that, in most cases, this is an all-or-nothing decision on the part of employers. The requirement that some employees self-screen or submit to a test and not others could infringe on workplace equality. Employers who can demonstrate legitimate, non-discriminatory reasons for testing a particular group of employees may do so, but should prepare to provide justification.
Non-discriminatory policy changes
Many employers have adapted policy changes to account for COVID-19. This includes work-from home policies, as well as physical workplace policies and those that govern employee responsibilities. While these changes are proactive, make sure they’re not discriminatory.
Employers can’t make new policies that discriminate based on age, race, gender, etc. For example, furloughing only staff above a certain age violates the Age Discrimination in Employment Act—even if it’s meant to protect their health. Instead, consider how to enable at-risk staff constructively. In this example, something like a telecommuting policy would not be discriminatory, since it does not prohibit individuals from gainful employment.
Be mindful of both the Age Discrimination in Employment Act and the Americans with Disabilities Act as you consider policy changes.
Paid sick leave and FFCRA
Employers will likely face questions from employees regarding sick leave, FMLA, and other illness-related absences during the pandemic. It’s the responsibility of employers to provide accurate and timely information for individuals, so they can get the leave and pay they’re entitled to.
The nuances of paid sick leave due to COVID-19-related circumstances are spelled out thoroughly in the Families First Coronavirus Response Act (FFCRA) and in materials distributed by the U.S. DOL. Employers need to stay apprised of the differences between FMLA and FFCRA, and what situations constitute qualified medical leave. This includes distinguishing between full- and part-time employees, self- and physician-mandated quarantines, and no-fault attendance policies.
Do your best to be a responsible employer
The lack of clear, unified insight on employer liability makes it difficult to know how to best operate during the pandemic. All you can do is act in accordance with recognized CDC and OSHA standards. As these organizations scramble to provide updated guidance and codes, employers need to be proactive in protecting themselves and their employees.
Adjust your current policies to accommodate coronavirus concerns. Stay up-to-date with the best health advice from reputable organizations. Keep apprised of what other companies in your industry are doing to combat liability. Above all, document your efforts and act with integrity, putting the health and wellness of employees first.
Keep Reading: Latest Workplace Covid-19 Resources