The good news for employers is that the CDC has relaxed certain rules for employers in response to COVID-19.  However, CDC, OSHA, and state guidelines and rules are fertile ground for legal claims against employers.

Employers are ordinarily under tight restrictions about the types of medical information they can collect about their employees.  Fortunately, the CDC has relaxed some of these rules in response to the COVID-19 pandemic, and now employers can inquire about subjects that were previously forbidden.  However, medical privacy is a zealously-protected legal right and employers should be clear on the rules before requesting medical information.  We break down the fundamentals for you in our Employer’s COVID-19 Protection Crash Course

Follow the CDC’s Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have an exposure to a confirmed COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Also, send employees who are symptomatic home until released by a medical professional or until they meet the guidelines for discontinuing self-isolation.  One way to increase the chances that sick employees will stay home is to bind them to written agreement to do so.  An Agreement is included with our Crash Course.

Below are is a general collection of guidelines recommended by CDC. Monitor federal, state, and local public health communications about COVID-19 regulations, guidance, and recommendations and ensure that workers have access to that information. The list below is a brief overview, and is subject to change, so frequently check the CDC COVID-19 website for the complete list and periodic updates.

•           Develop an Infectious Disease Preparedness and Response Plan, as recommended by the CDC.

•           Conduct periodic inspections of the conditions and cleanliness of the store to prevent and/or minimize risk of employees and others from contracting COVID-19, as recommended by the CDC.

•           Provide employees with antibacterial soaps, antibacterial wipes, and other cleaning agents recommended by CDC.

•           Implement policies and procedures for prompt identification and isolation of sick people as is recommended by CDC.

•           Develop, implement and communicate to employees about workplace flexibilities and protections as recommended by the CDC.

•           Implement engineering controls designed to prevent COVID-19 infection including, but not limited to, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as a clear plastic sneeze guard, as recommended by the CDC.

•           Cease operations of the facility and to otherwise close the facility when management knows or should know that various employees and individuals that are present at the store are experiencing symptoms of COVID-19.

•           Periodically interview and/or evaluate employees for signs and symptoms of COVID-19.

•           Prohibit employees who are exhibiting signs and symptoms of COVID-19 from working in the facility or otherwise entering the premises.

•           Interview and/or evaluate prospective employees regarding any signs or symptoms of COVID-19 prior to commencement of their employment.

•           Provide workers with PPE such as masks, latex gloves and otter devices designed to prevent the spread of COVID-19.

OSHA

Utilize OSHA’s most recent guidelines as a resource when creating return-to-work plans and policies. OSHA’s directives on implementing the identified guiding principles and FAQs may assist employers in safely reopening their businesses and workplaces. While the guidance is in the form of non-mandatory recommendations, OSHA has stated that an organization’s good faith efforts to comply with its recommended guidance will be taken into “strong consideration” when determining whether to issue citations for violations and has indicated the General Duty Clause may be the basis for violations if employers do not engage in such good faith efforts. Such citations could also be evidence of an employer’s failure in a civil lawsuit, so employers must take special precautions to enforce rules to reduce the risk of a COVID-19 outbreak in their businesses and be ready to defend claims

Defense Strategy

Workers compensation insurance does not protect employers from all types of COVID-19 claims.  Our Employer’s COVID-19 Protection Crash Course explains how to create a good paper trail for identification and isolation of employees with COVID-19, and it includes a strong written Agreement places employees on notice of the risk of COVID-19 in the workplace.  It also includes free links to the latest orders issued by each state for employee health screening and temperature checks, and requirements for mask.  It is a good starting point as part of a larger risk management and documentation program designed to help defeat employee lawsuits.

Is my business at risk of legal claims arising from COVID-19?

How do I defend a COVID-19 suit against my business?

Will workers compensation protect me if my employees get COVID-19?

What is the Employer’s COVID-19 Protection Crash Course?