• Michael Kennedy Esq.

The New COVID-19 “Normal”: 19 Things Employers Should Do Before Reopening

For essential and non-essential employers, preparing for the new “normal” will be an awkward dance with many uncertain missteps. With the advent of businesses reopening, companies are having a hard time adapting to all of the regulations and guidance documents thrown (virtually) at them. For example, as of May 19th 2020, OSHA adopted new enforcement policies for the Coronavirus, adapting their previous measures after a bombardment of whistleblower complaints. I am sure your own business has a COVID-19 resource center with outdated guidance links. As helpful as that is, I put together a list of practical recommendations that you should consider venturing into the new “normal”. It covers infectious disease preparedness plans, liability protection, employment law and communication efforts. For example, many states and localities are requiring that for businesses to reopen they must develop and implement a written site-specific COVID-19 exposure control and response plan.

As a practicing environmental health and safety (EHS) attorney, the number of alert blasts and zoom presentations is overwhelming. Most of what I have seen advertised is redundant or barely applicable. However, things will get more complicated with no immediate testing assurances and untrained people returning to work. COVID-19 response planning, like limiting social distancing to six feet may seem straight forward, but the devil is in the details. Missteps could include inadequate treatment of sick employees, insufficient exposure controls, and a lack of written response plans. These are easy marks for citations from the Occupation Safety and Health Administration (OSHA) and the Department of Labor (DOL) that have more than 10 employees.

Since most of my career has involved reducing high-risk exposure from chemical industry, I have compiled a list that employers should consider in their planning efforts. It incorporates best practices from highly regulated industries, basic safety theories, and practical common-sense concepts that have been around for ages. I could have easily reposted every OSHA or CDC guidance, but at this point, I assume that you are past that initial step. Please note, I drafted this list with an emphasis on general principles, every industry/company is unique and would have to design their plans accordingly.

With that said, 19 Things Employers Should Do Before Reopening:

1. Infectious Disease Preparedness Plan - OSHA recommends that employers develop an infectious disease preparedness plan. This includes keeping up to date on all federal, state, and local guidance, as well as identification of their workplaces’ specific risks to exposure. Obviously, it should incorporate policies encouraging frequent hand-washing and social distancing, as well as encouraging employees to stay home if they are showing symptoms of the disease. Also, capture all of the policies in a written plan – I cannot tell you how many OSHA citations result from the assumption that everything is written. Cal/OSHA has advanced guidance on the issue.

2. Be Current on Developments - I have partnered with Contexture’s COVID-19 Resource center which supports live and dynamic changes to all legislation and regulation from federal agencies and all 50 states across the US. It is important to get the right information at the right time to the right people.

3. Create a COVID-19 focused task force at your company, if you do not already have one. Diversify the knowledge base and engage your EHS professionals, attorneys, workers and managers, if possible. The breath of COVID-19 issues can be overwhelming; teams are very helpful. You also never know when a key person gets sick…

4. Assess Exposure Risk Levels - OSHA reminds employers that they are obligated to provide personal protective equipment to their employees. Concerning COVID-19, this typically means gloves, respirators and face-shields. With that said, this obligation should be based upon the risk level inherent to the specific job. To that end, OSHA classifies jobs from low risk (no close contact with the general public, or other employees) to very high risk (typically reserved for healthcare workers). Employers should assess their own workplace risk level and implement appropriate policies and controls.

5. OSHA Controls (Risk Mitigation) - Employers are encouraged to immediately isolate and remove any employee who exhibits symptoms or may have been exposed to the virus. There are other practical steps, or controls, that employers can implement to mitigate risk. OSHA discusses four types, from most to least effective: engineering controls; administrative controls; safe work practices; and, personal protective equipment.

a. Engineering controls - physical modification to the workplace, such as the installation of high-efficiency air filters, ventilation, or physical barriers to separate employees from each other and members of the public.

b. Administrative controls - changes to workplace policy or procedure to minimize the risk of exposure. This could include prohibitions against employee travel, use of telecommunication, or modifying schedules to reduce the number of employees on the worksite.

c. Safe work practices - requiring regular sanitation and handwashing, as well as providing the res

6. Get adequate PPE (personal protective equipment) - There are tons of scams and knockoff going around the country. The fake stuff could hold you liable and not protect you or your workers. Also, do inventory checks and coordinate a plan B if you run out.

7. Beware of OSHA’s General Duty Clause 5(a)(1) in which employers are required to provide 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.” As a result, employers have an obligation to respond to the pandemic to ensure the safety and well-being of their employees. To that end, OSHA issued guidance in March 2020 to help employers. Even though there is no clear COVID-19 regulation that points to this specific disease, the general duty clause will be flexed in order to hold employers liable. With that said, employers are urged to implement the recommendations to the fullest extent possible.

8. Training, training, training - You must teach your employees how to protect themselves and other employees. Create a culture of safety! I have found out the hard way that most workers do not know how to properly wear PPE. These are your first lines of defense, train them accordingly.

9. Retaliation and Whistleblowers - OSHA is inundated with retaliation cases (over 5,000 and counting), partly because there is only one viable employee recourse and no direct COVID-19 regulation on the books. Workers requesting inspections, complaining of COVID-19 exposure, or reporting illnesses are likely covered under one or more whistleblower statutes. Inform them of their protections from retaliation and refer them to www.whistleblowers.gov for more information.

10. Use Design Adaptations to Control Risks - To my shock, when grocery stores opened up in March, only half of the employees were in PPE. Now cashiers have face shields, and everyone is in mandatory PPE, including customers. Learn from others’ mistakes and re-think exposure and design controls.

11. Develop a Communication Plan in the case of an outbreak - Right now you should be communicating with your employees (via policy or otherwise) to

a. emphasize the need to stay home when sick,

b. remind them of respiratory etiquette and hand hygiene, and

c. advise them to monitor their health and those with whom they live. It is a simple step but one that is taken for granted.

12. Create FAQs - Management should also prepare for the plethora of questions employees will likely have; designate a point-person or official team to ensure consistent messaging. FAQs help tremendously. Also, ensure that you have a way to reach all employees if they lose access to work email, regardless of where they are located.

13. Business contingency planning makes sense now not later - Think redundancy. Your workplace might not have any COVID-19 employees so now is the time to prepare. If your supervisory manager is sick, how will you get the records you need? You should develop contingency plans tailored to your industry, the size of your business, and how you will operate if absenteeism rates go up or if you have to mandate closures.

14. Understand your employer's liability and how to reduce it. Know your obligations. The COVID-19 outbreak implicates a range of employment laws, including the ADA, GINA, OSHA, Title VII, and ERISA. To deal with individualized legal issues, you should consult your attorney for counsel.

15. What is the Scenario? It might go without saying, but think about the possible scenarios. What if an infected person eats at several common areas, gets sick and wants to come back to work? Put your head around who has the responsibility for this, what they have to do, which policies you have to employ and to whom.

16. Require sick employees to stay home - and determine how to compensate them. As detailed above, you have an obligation to keep employees safe. Whether you should pay sick or quarantined employees (who are not working remotely), depends on their exempt or non-exempt status; previous use of sick leave; union contracts; and your policies and benefit plans. OSHA recommends that employers develop policies and procedures to promptly identify and isolate sick employees. OSHA also recommends that employers develop, implement, and promote flexible workplace policies to accommodate employees impacted by COVID-19.

17. Do NOT disclose an employee’s health conditions (generally speaking) - Employees have rights of privacy – COVID 19 has not changed this. However, if you learn that an employee has been diagnosed with COVID-19, and you have not been contacted by local health authorities, contact the health agency to seek guidance on employee communication or other steps the agency wants you to take.

18. Do not require employees to undergo medical testing - As of now, test kits for the virus are somewhat limited and can only be performed by a qualified healthcare provider. The CDC is instructing healthcare providers to be selective in how testing is administered. Note the CDC might loosen this restriction soon.

19. Follow through on implementation and be flexible – Strict adherence to manuals and policies are great, but they need to be implemented with flexibility. Run your plans though scenarios to test if they are easily implemented and understood.


© 2020 Michael Kennedy All Rights Reserved.