Co-Editors, Scott A. Witty, email@example.com and Richard R. Burns, firstname.lastname@example.org, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- LAWSUITS POST-PANDEMIC
- OSHA ANNOUNCES GOOD-FAITH EFFORTS AS ENFORCEMENT GUIDANCE
- CAN AND SHOULD EMPLOYERS ASK AN EMPLOYEE IF THEY ARE ESPECIALLY VULNERABLE OR AT RISK FOR COVID 19 COMPLICATIONS
- OSHA UPDATES IN RESPONSE TO COVID-19 PANDEMIC
- Tip Of The Month
There has been legislation in a number of states to protect healthcare workers, but there is nothing, for example, to protect people in the food chain industries. It is hopeful that, starting with the U.S. Senate, we will get legislation that provides legal immunity unless it can be shown that businesses were grossly negligent or reckless in exposing workers or customers to an infection. Without such legislation there are a number of areas of potential liability, the most important of which is safety lawsuits. Here OSHA has been asked to implement specific safety measures, but all it has done is urge employers to follow the Center for Disease Control and Prevention Coronavirus Safety Recommendations. In the case of employees, they would need to file claims for workers’ compensation, but it will be difficult for most workers to prove they contracted the virus at work. Some states have actually eased this burden by presuming workers with coronavirus caught it on the job. Workers may also have the chance to bring actions under state laws that would allow some non-workers’ compensation actions involving safety violations. Customers will have the same problems showing how they contracted the virus. Non-exempt employees may also bring claims for unpaid wages for hours worked. During working from home there are limited mechanisms to control off-the-clock hours worked in what would normally be lunch breaks or after hours. There also is the Families First Coronavirus Response Act, which for the first time imposes paid sick leave. It can be for reasons tied to coronavirus, including if the employee falls ill at work or because they have a child whose school has closed. Employers will need to tread water carefully in this area. A final area is under the Americans with Disabilities Act. Here workers may request a “reasonable accommodation” to allow them to do their job from home. This may very well come up with workers who feel uncomfortable coming back to work when there is no shelter in place order and who have an underlying condition or maybe possibly just age concerns. Employers will need to be careful in reviewing accommodation requests, and the whole experience may create future problems when working at home requests are made.
During the COVID-19 pandemic, some employers face difficulty complying with OSHA’s training and testing standards. Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions and stay-at-home or shelter-in-place requirements may limit the availability of employees, consultants or contractors who normally provide training, auditing, equipment inspections, testing and other essential safety and industrial hygiene services. Employees may also be unable to participate in training when trainers are available. In other situations, access to medical testing facilities may be limited or suspended because of the COVID-19 pandemic.
In response to these obstacles, OSHA issued an enforcement guidance memorandum stating that OSHA Area Offices will now evaluate an employers’ efforts to comply with OSHA standards that require training, testing or other safety requirements. Rather than focusing on results, OSHA compliance officers are to determine whether employers are making good-faith efforts to remain in compliance with training and testing mandates. To do so, compliance officers should evaluate whether the employer explored all options to comply with the applicable standards, whether any interim alternative protections were implemented or provided to protect employees and whether the employer took steps to reschedule the required annual activity.
If an employer is unable to comply with OSHA-mandated training and testing standards because its workplace is closed pursuant to a stay-at-home order, the employer should demonstrate a good-faith attempt to meet applicable requirements as soon as possible following the re-opening of the workplace.
If an employer cannot show good-faith efforts to comply with training and testing standards, OSHA may issue a citation. OSHA listed the following situations where enforcement discretion should be considered: annual audiograms, process safety management requirements, hazardous waste operations training, respirator fit testing and training, maritime crane testing and certification, construction crane operator certification and medical evaluation.
While OSHA is loosening requirements for compliance with OSHA training, inspection and testing standards, employers must still demonstrate they are making good-faith efforts to comply with OSHA’s requirements and must continue to maintain safe workplace environments under the general duty clause.
CAN AND SHOULD EMPLOYERS ASK AN EMPLOYEE IF THEY ARE ESPECIALLY VULNERABLE OR AT RISK FOR COVID‑19 COMPLICATIONS
As businesses begin to re-open, it is important for employers to keep in mind that the ADA and other nondiscrimination laws are not suspended, even in light of the unprecedented impacts of the COVID‑19 pandemic. One issue that many employers are dealing with concerns whether to ask returning employees who are thus far symptom free whether they have a medical condition that could make them especially vulnerable or at risk for COVID‑19 health complications. Generally, according to the available EEOC guidance, these types of symptom free inquiries are prohibited under the ADA unless they can show a “direct threat” of harm to the employee or others in the workplace. Thus, employers should generally avoid making these types of inquiries because it invites legal scrutiny. Now, because of the severity of the COVID‑19 pandemic, employers may be permitted to make these types of inquiries. During this public health crisis, employers may arguably have sufficient objective health information to conclude that employees face a direct threat if they contract COVID‑19. While employers may try to make these inquiries on the foregoing basis, doing so may not be the best way to handle the situation. Another way to handle these types of inquiries is to use/adapt the following pandemic survey found in the EEOC’s guidance:
ADA COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY
Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page
In the event of a pandemic, would you be unable to come to work because of any of the following reasons:
Answer: YES _____, NO _____
In response to the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has issued new enforcement guidance memorandums.
COVID-19 Reporting in the Workplace
Under the Occupational Safety and Health Act, COVID-19 can be a recordable illness if a worker is infected as a result of performing work-related duties. In areas with higher cases of community transmission, however, this can be difficult to determine.
OSHA requires that certain work-related illnesses and injuries be recorded, including COVID-19 so long as certain conditions are met. These conditions include:
- There is a confirmed case of COVID-19 as defined by the Centers for Disease Control (“CDC”);
- The case is work-related as defined by OSHA regulations which state than an injury or illness is work-related “if an event or exposure in the work environment either cases or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness”; and
- The case involves one or more of OSHA’s general recording criteria, which are:
(ii) Days away from work;
(iii) Restricted work or transfer to another job;
(iv) Medical treatment beyond first aid;
(v) Loss of consciousness;
(vi) A significant injury or illness diagnosed by a physician or other licensed health care professional.
On April 10, 2020, OSHA issued an enforcement guidance memorandum stating that employers in the healthcare industry, emergency response organizations (emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make determinations of work-relatedness of COVID-19. But until further notice, OSHA will not require other employers to make the same work-relatedness determinations, except where:
- There is objective evidence that a COVID-19 case may be work-related (e.g., a number of cases developing among workers who work closely together without an alternative explanation); and
- The evidence was reasonably available to the employer (e.g., information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees).
Recognizing the difficulty employers face in making work-relatedness determinations, OSHA explained that this enforcement guidance was issued because it will “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19 effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”
TIP OF THE MONTH:
In the age of the COVID-19 pandemic, it is easy to become flooded with information from any multitude of sources. We want to encourage employers to take advantage of the helpful employment law-related information available while ensuring that care is taken in determining which information to rely upon. The United States Department of Labor, OSHA, EEOC and similar state agencies have consistently issued guidance in the form of memoranda and question and answer publications. The websites for those agencies is a good place to start, but fact-specific decisions may be best handled in consultation with an employment law attorney.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2020 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.