Employers across the country are navigating concerns regarding the effects of COVID-19 in the workplace, including questions related to paid leave requirements (see New Paid Leave Policy Offers Broad Federally Mandated Leave for COVID-19 Relief), restrictions arising from mandated business closures (see Practical Tips on the Harris County and Houston-area ‘Stay Home, Work Safe’ Order, and the health and safety of their employees.
This alert will address the latter question – what measures should employers implement to ensure that they have provided their employees a safe work environment? This question is highly relevant to the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH Act”), which requires employers to furnish each worker “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.”
Although there is no specific OSHA standard covering COVID-19, it is prudent for employers to review the guidance set forth by the Centers for Disease Control (“CDC”) (see here), the Equal Employment Opportunity Commission (“EEOC”) (see here and here), and the Occupational Safety and Health Administration (“OSHA”) (see here) to make sure that they have implemented proper health and safety measures to protect employees against COVID-19.
Key recommendations from each of the foregoing agencies are summarized below:
1. Actively encourage sick employees to stay home.
2. Implement social distancing.
3. Separate sick employees.
4. Emphasize respiratory etiquette and hand hygiene.
5. Provide cleaning products and perform routine environmental cleaning.
6. Encourage self-reporting.
During this time it is also prudent for employers to remember that even if an employee does not have a medical reason for self-quarantining, but has a reasonable belief that reporting to work would pose an imminent and serious danger to the employee’s life or health, the employee cannot be retaliated against for voicing their concern. 29 C.F.R. § 1977.9(c) (good faith complaints to employer about occupational health and safety are protected activity under the OSH Act). By implementing the foregoing preventative strategies, employers can actively mitigate against workplace health and safety concerns.