Employment Law Issues When Safely Reopening Businesses

Alert

As state and local stay-at-home orders expire and COVID-19 business restrictions expire or are modified, employers are now preparing to move employees back to the workplace.  Employers must be aware of their obligations and take precautionary measures at the workplace to protect the safety and health of their employees as businesses prepare to reopen.

This Client Alert provides an overview of certain issues employers should consider when reopening, including OSHA requirements, Workers’ Compensation issues, and the administration of statutory leave.  In future client alerts, we will address potential claims under the Americans with Disabilities Act, Whistleblower Laws, and the National Labor Relations Act, as well as potential theories of liabilities as common-law tort claims.

Note that federal and state laws and guidance related to COVID-19 are changing frequently.  Employers should continue to monitor developments and should consult their Honigman Labor and Employment counsel for advice based on their specific circumstances.

OSHA Requirements

• Employers must provide a safe workplace under the OSH Act’s General Duty Clause and are liable for violations.
• Employers must provide PPE to employees when job hazards warrant it. Employers should be sure to consult state and local regulations in addition to OSHA’s guidance.
• Employers only have to record cases of COVID-19 on OSHA form 300 log when the case is work-related.
• Employers are encouraged to implement a written infectious disease preparedness and response plan.

Workplace safety is generally governed by the Occupational Safety and Health Act (“OSH Act”) which is administered and enforced by the Occupational Safety and Health Administration (“OSHA”).  OSHA has developed standards that apply to the current COVID-19 pandemic and any process of reopening businesses.  The standards are detailed and often industry specific, but we address four basic issues to consider when resuming operations: (1) the General Duty Clause; (2) the Personal Protective Equipment (“PPE”) standards; (3) reporting requirements; and (4) having an infectious disease plan. 

The OSH Act’s General Duty Clause requires employers to furnish employees with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  Employers have a duty to keep employees safe and are liable for violations.  Especially during the COVID-19 pandemic, where there may not be specific standards applicable, employers need to be aware of the General Duty Clause and act reasonably with regard to any hazards.

OSHA may require PPE to be used to protect employees when job hazards warrant it.  In addition, various state executive orders as well as local county and city regulations may require businesses to ensure employees wear masks and adhere to other appropriate social distancing guidelines as necessary.  If employers have questions about PPE requirements, they should contact their employment counsel immediately.

Under OSHA recordkeeping requirements, covered employers must record certain work-related injuries and illnesses on their OSHA 300 log.  According to recently released OSHA guidance for the COVID-19 pandemic, employers must record instances of workers contracting COVID-19 if:

• There is a confirmed case of COVID-19;
• The case is work-related, as defined by 29 CFR 1904.5; and
• The case involves one or more of the general recording criteria outlined in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, or days away from work).

Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will only enforce its recordkeeping requirements for employers in areas where there is ongoing community transmission of COVID-19 if there is objective evidence that a COVID-19 case may be work-related, and the evidence was reasonably available to the employer.  The relaxation of the reporting requirement is in conjunction with new guidance that takes into account employers’ good faith attempts to comply with OSHA rules and regulations during the current pandemic.  We provided specific analysis on OSHA’s new recordkeeping requirements here.

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions in areas where there is ongoing community transmission.  Employers in these areas must continue to make work-relatedness determinations and record cases appropriately.  

Finally, OSHA recommends that a business have a written infectious disease preparedness and response plan.  Employers need to consider how employees can be exposed to COVID-19.  They should also consider controls necessary to address those risks.  From a logistical standpoint, employers should plan for increased rates of employee absences, the need for social distancing, and options for conducting essential operations with a reduced workforce.  The elements of such a plan can be found here.

Workers’ Compensation Reporting

• If an employee files a claim for workers’ compensation due to COVID-19, the employer should contact their insurance carrier and legal counsel immediately.
• The employer should implement policies for the safeguarding of evidence in such a situation.

Employees injured on the job can file a claim for workers’ compensation through their state workers’ compensation agency.  While workers’ compensation laws provide compensation for “occupational diseases” that arise out of and in the course of employment, many state statutes exclude “ordinary diseases of life” (e.g., the common cold or flu).  Whether COVID-19 will constitute an “ordinary disease of life,” will likely be decided on a state-by-state basis as courts grapple with new claims and theories of relief.

Generally, to be compensable, an illness or disease must be “occupational,” meaning that the illness:

• Arises out of and occurs in the course and scope of employment;
• Is proven to be the result of a workplace exposure; and
• Is “peculiar” to the employee’s work, meaning that the disease is found exclusively among or presents a greater risk for certain employees. During this pandemic, employers in the healthcare industry and emergency response organizations are among those with a higher likelihood of exposure.

Because COVID-19 is a highly contagious virus, employers may have trouble determining whether a case is the result of a workplace exposure.  Although some states, including Michigan, have established a rebuttable presumption that first responders diagnosed with COVID-19 contracted the virus in the course of their employment, whether a specific case is covered in other contexts will be determined by the facts established during an investigation of the claim, as well as the governing law in the jurisdiction where the claim is reported.

Nevertheless, regardless of the merits of a claim, workers’ compensation insurance policies often have reporting requirements that may impact coverage.  As COVID-19 cases arise when employees return to work, employers should be sure to notify their insurance provider of any claims and comply with all policy procedures for safeguarding evidence.

Statutory Leave Issues

• Employers must be aware of the expansion of state and federal leave laws.
• Employers must comply with requests for leave under the FFCRA and FMLA.

In response to the COVID-19 pandemic, federal and state governments have created or modified leave laws to provide additional protections to employees.  At the federal level, the Families First Coronavirus Response Act (“FFCRA”) modifies and expands federal leave laws, including the Family and Medical Leave Act (“FMLA”).  The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) amended the FFCRA and expanded its provisions.  We provided guidance on FFCRA and the CARES Act here, here, and here.

To prevent claims under these new leave laws, employers should consider the potential availability of leave under the FFCRA and FMLA (and applicable state laws) for employees who are unable to return to work when recalled.  Employers should also consider the overlap of laws in dealing with employees experiencing COVID-19 issues.  For example, an employee who tests positive for COVID-19 may trigger OSHA reporting requirements, a claim for workers compensation benefits, a request for leave under the FFCRA, and a request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  Although an upper respiratory infection would not normally constitute a serious health condition under the FMLA, the unique facts of COVID-19 and how the virus affects a specific employee might mean that employers have an obligation to designate leave as protected under the FMLA and provide affected employees with all of the resulting rights afforded under that law. 

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The process of reopening a business during this pandemic is complex.  If you have questions about this guidance or any other COVID-19 workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.  Please also attend the complimentary webinar on Tuesday, May 5, at 2:00 P.M Eastern Time, on Employer Best Practices for Return to Work.  More information is available here.