COVID-19 and Worker Safety

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“Reopening America” Plan

The Trump administration has outlined a 3-phase plan to “reopen America.” The plan details “gating” criteria that must be met before states or regions can begin Phase 1.  This includes downward trajectories of COVID-19 symptoms and cases and more “robust testing.” The plan also reiterates general guidelines for individuals for social distancing that are already in place, such as handwashing with soap and water, avoiding touching your face, sneezing or coughing into a tissue or into the inside of your elbow, disinfecting frequently used items and surfaces, and “strongly” considering using face coverings in public.  The guidelines advise not going to work or school and contacting your medical provider if you feel ill.

General guidelines for employers ask them to develop and implement policies for social distancing, protective equipment, temperature checks, testing, isolating, contact testing, sanitation, disinfection, business travel, monitoring employees for symptoms, and contact tracing for employees who have tested positive for COVID-19.  Employers would do this in accordance with federal, state, and local guidelines and industry practices,

Phase 1 of the plan calls for reopening gyms, restaurants, and sports venues as long as they observe “strict physical distancing,” with the added requirement of implementing strict sanitation protocols for gyms.  Outpatient elective surgeries may resume as long as specific requirements are met.  Phase 1 recommends minimizing non-essential travel, keeping common areas closed, providing special accommodations for “vulnerable individuals,” encouraging teleworking, and returning to work in phases.  Vulnerable individuals are to “shelter in place.”  Vulnerable individuals are defined as:  1. The elderly, and 2. Individuals with seriously underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma and those whose immune system is compromised, for example, by chemotherapy for cancer and other conditions requiring such therapy.

Phase 2 allows schools to reopen, youth activities to resume, and bars to open as long as there is no evidence of COVID-19 rebound and gating requirements from Phase 1 are still met.  Vulnerable individuals should still “shelter in place.”

Phase 3 requires that gating requirements still be met and allows vulnerable individuals to resume public interactions, with physical distancing recommended, and where that isn’t possible, to take “precautionary measures.”  Phase 3 also states that “low-risk” individuals should minimize time in crowds.  Additionally, “unrestricted staffing” may resume at worksites in Phase 3.

The plan is very broad.  State and local government are expected to provide more specific guidance and rules as businesses can reopen.  Governors of California, Oregon, and Washington are working on a unified plan for reopening.  New York, New Jersey, Connecticut, Pennsylvania, Rhode Island, and Delaware governors are working together on a plan for their states.  Michigan, Ohio, Wisconsin, Minnesota, Illinois, Indiana, and Kentucky governors are also working together, so we should learn more about those plans in the days ahead.  Georgia Governor Brian Kemp has already announced that bowling alleys, body art studios, barbers, hair and nail salons, fitness centers, and massage therapy businesses can reopen on April 24.  Tennessee’s stay-at-home order will expire on April 30, with a majority of businesses in 89 counties allowed to open on May 1 or possibly sooner.  Many businesses in South Carolina are opening this week starting April 21.  Governors of Louisiana and Illinois have indicated that they are looking at reopening soon, with Louisiana Governor Edwards hoping to reach Phase 1 “sooner rather than later.”

Worker Complaints

In the meantime, employees working during the pandemic have already filed thousands of complaints regarding their exposure to COVID-19 in work places that have remained open.  The primary federal worker protection law is the Occupational Safety and Health Act, passed in 1970.  The Occupational Safety and Health Administration (OSHA) is the agency administering the Act.  An OSHA complaint (alleging violations of the Act) has been filed against Amazon, demanding that its Shakopee, Minnesota warehouse be shut down for a deep clean because the company has had workers at numerous facilities across the U.S. test positive for COVID-19.  An OSHA complaint was filed by a nurse in Windham, Connecticut because she was told not to wear an N95 mask from the hospital supply – she had to use a basic surgical mask on a floor with COVID-19 patients.  She contracted the virus.  The basis of her complaint is that she was denied personal protective equipment by her employer.  A poultry plant worker in Camilla, Georgia filed an OSHA complaint because plant workers were required to stand shoulder-to-shoulder on the assembly line.  Three of those employees died of COVID-19.  Ten nurses at Providence St. John’s Hospital in Santa Monica, California were suspended for refusing to treat patients unless the nurses were given N95 masks.

OSHA rules are very specific and detailed, and provide a path for redress for employees who are harmed or injured when working conditions violate OSHA standards. OSHA allows each state to administer their own safety and health plans, as long as they meet minimum federal requirements. Twenty-two states also have their own plans that cover public and private employees.  An additional five states have plans that only cover public employees because OSHA does not cover public employees.  California, Michigan, Oregon, and Washington have their own plans that are more stringent.  State plans provide more comprehensive worker protection regarding safety and health in the workplace.

OSHA and state plan violations are likely to be the basis for more lawsuits as businesses open and some fail to meet OSHA requirements.  The Washington Post, under the Freedom of Information Act, found 3,000 complaints filed for OSHA violations related to COVID-19; that does not include complaints filed under state OSHA rules.

In addition to complaints, numerous workers across the country have staged protests: Instacart employees – those who provide delivery service from grocery stores to homes, Whole Foods, Amazon, and McDonald’s employees, among others.  Complying with OSHA and ensuring additional employee protection will need to be top priority for U.S. businesses.

OSHA Compliance Issues

Further complicating matters is a recent directive from OSHA that allows exemptions:  if employers can’t meet OSHA requirement for safety training and other “regular review” during the COVID-19 pandemic, they can prove “inability to comply” and have made a “good faith effort” to comply.  The exemption mostly affects companies with periodic testing requirements for things like airborne dust, and doesn’t apply to everyday safety concerns such as requiring protective gear.  This directive applies to all employers subject to OSHA inspections, those with 11 or more workers.  The question is going to revolve around what constitutes “safety” or “protective” gear, and what constitutes “good faith.”  Good faith is not a clearly defined term in the legal world.

OSHA has come under criticism from some Democratic lawmakers for failure to issue temporary emergency rules to protect health care and other necessary workers from contracting COVID-19. Democrats attempted to include such a rule in the recently passed CARES (Coronavirus Aid, Relief, and Economic Security) Act, but were unsuccessful.  However, that Act did include a mandated review of OSHA’s COVID-19 guidance for employers.  The Office of Inspector General will evaluate OSHA’s efforts to protect front-line workers during the pandemic and examine other Labor Department agency responses. That report, is due in Fall 2021, so it will look backwards at what went wrong and what was done well – it won’t help workers currently required to go to work or employers in terms of what they must do to protect employees.

With the “reopening” just ahead, the complaints could escalate rapidly, which could overwhelm state and federal agencies.

What Can Employers Do to Minimize Risk for Employees?

Employers should plan to go above and beyond the minimums mandated by OSHA and other labor safety and health requirements, particularly in regard to physical distancing.  Some employers have been quick to implement smart changes.  For example, many grocery stores have cashiers behind plexiglass and they are wearing masks and gloves.  Many grocery stores have set a good example in accordance with FDA (Food and Drug Administration) guidelines.  They have marked aisles as “one way” and have taped lines on their floors where shoppers have to stay 6 feet from other shoppers as they check out with their groceries.  They have discontinued salad bars, food sampling and have implemented FDA guidelines for cleaning and sanitizing, and many stores limit the number of shoppers that can be in the store at one time.  Some are opening only every other cash register.

“Contactless” deliveries from stores and restaurants are available. Items are dropped off by masked and gloved personnel and are left on the doorstep.  All of these measures help protect their employees as well as consumers.

Ford Motor Company is testing RFID (radio frequency identification) wristbands that vibrate to alert wearers when they come within six feet of each other.  The device also monitors interactions.  It uses software from Radiant RFID, utilizing Bluetooth technology.  Ford also plans to require thermal imaging to detect fevers for all employees entering the building when it resumes production.

In the face of complaints by Amazon workers and reports that the company allowed prospective employees to crowd together at job fairs, Amazon CEO Jeff Bezos has stated that he is developing COVID-19 testing for all Amazon employees across the globe.

However, when employers are using “guidelines,” subjectivity leaves some gray area and vulnerability to lawsuits.  Employers will have to find creative ways to help protect their employees now and as businesses reopen in the coming weeks and months.  If you are an employer, ask yourself whether you are compliant, ready, proactive, and resourceful in ways that protect both you and your employees.

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